The Biden administration announced the postponement of several changes to employment-based visas. Plans to increase wages for H-1B professional foreign workers and employment-based green cards are on hold. Reforms to the H-1B visa program and new regulations allowing virtual review of Form I-9 documents are also delayed. Additionally, there will be a delay in the increase of filing fees for immigration-related matters. Further details about these updates follow.
Postponed Prevailing Wage Plans
The Department of Labor (DOL) moved the proposal to raise prevailing wage rates for H-1B and PERM programs to its long-term agenda. This usually means the proposal is being permanently shelved. The Trump administration had raised wages for H-1B visas and employment-based green card holders, but a federal judge overturned the rule. The Biden administration initially considered supporting the proposal but has now removed it from the DOL agenda.
Reforms to H-1B Visa Program
U.S. Citizenship and Immigration Services (USCIS) still plans to make changes to the H-1B visa program, following some suggestions made in the Trump administration’s proposal. The updated proposal is expected to be published in December 2023. According to USCIS, the proposal includes:
- Redefining the relationship between H-1B employers and employees,
- Updated employer site visit guidelines,
- Clarification of rules for F-1 student visa holders waiting for change of status to H-1B,
- Describe requirements when amended or new H-1B visa petitions are required, including new work location or material changes to employment.
It is unclear if the issue of employers filing multiple applications for the same person will be addressed.
Changes to H-2 Visa Programs
Announcements regarding changes to the H-2A and H-2B temporary worker programs are anticipated for this summer. The DOL plans to update prevailing wage rules for H-2B visas and enforce employer obligations. The H-2A program for temporary agricultural workers will be updated to address working conditions and protections for farm workers. The proposed rules from DOL and DHS are scheduled to be released in August and September.
Delay in Filing Fee Increases
The planned increase in filing fees for immigration petitions and applications is delayed until March 2024. The fee increases, proposed in January 2023, aimed to address the high cost of processing asylum claims. USCIS relies on user fees for funding, not funds from Congress, and as such much fund asylum claims. The fee increase for employment-based visas was intended to cover the shortfall from asylum claims.
The last time fees were updated was in December 2016. At that time, fees increased by an average of 21%. If the proposed current fee increase is implemented, it will result in an average increase of 40%. Employers’ feedback on the proposed prices expresses concern about the higher costs compared to the quality of service provided by USCIS under the current fee structure.
Virtual I-9 Inspection
The final rule for Form I-9 Employment Eligibility Verification, including options for virtual document review, is delayed until August. This means there may be flexibility for options to in-person review of employment authorization and identity documents. During the pandemic, ICE allowed alternative methods such as email, fax, and videoconferences for document review.
J-1 Rule Coming
The State Department is expected to announce updates to the J-1 intern and trainee program in January 2024.
L Visa Plans Eliminated
Plans to amend L-1 visa regulations have been eliminated by USCIS. Previous proposals included revisions to the definition of specialized knowledge and wage requirements for the L-1 category, but these efforts have been halted.
For further information or questions about these updates or any employment-based visa, you can reach out to us anytime. Our team of attorneys is dedicated to working with our clients every step of the way and maximizing the chances of a successful outcome for them.