Biden team delays hiking H-1B wage levels for two years

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USCIS suspends biometrics requirement for form I-539 extension of stay in or change of status applicants.

With the Biden administration delaying a regulation to raise the prevailing wage rates for H-1B and green card holders to Nov. 14, 2022, sponsors will be covered by current rules for nearly two years.

A transition phase to the new wage levels for high skilled workers on H-1B visas widely used by Indian professionals, which are yet to be finalized will begin only on Jan 1, 2023, in a phased manner.

The US Department of Labor (DOL) Thursday announced an 18-month delay in the effective date of the final rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.”

Published on January 7, the final rule proposed by the previous Trump administration affects employers seeking to employ foreign workers on a permanent or temporary basis through certain immigrant visas or through H-1B, H-1B1 and E-3 non-immigrant visas

Indians get about 70 percent of 85,000 H-1B visas for high skilled workers issued annually, including 20,000 for those with master’s degrees from US colleges. The H-1B1 visa is for citizens of Singapore and Chile, while only Australians are eligible for the E-3 visa.

The final rule will now go into effect on Nov. 14, 2022.

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“The delay will provide the department with sufficient time to consider the final rule’s legal and policy issues thoroughly, and to review the public comments received in response to a Request for Information published on April 2,” DOL said.

The RFI seeks information about potential sources and methods for determining prevailing wage levels.

The delay will also give agency officials sufficient time to compute and validate prevailing wage data covering specific occupations and geographic areas, complete necessary system modifications and conduct public outreach, it said in a press release.

This follows an initial 60-day delay. DOL said it based based this action on a Jan. 20, 2021, White House memo.

On Feb. 4, the US Citizenship and Immigration Services (USCIS) announced Biden administration’s decision to delay implementation of the Trump administration rule for wage based H-1B selection instead of the current lottery system.

READ: More than 1,000 unstamped H-1B, other nonimmigrant visa holders stranded in India (May 19, 2020)

The Trump final rule announced on Jan 7 prioritized the higher-paid and higher-skilled foreign workers for H-1B cap-subject visas.

Meanwhile, USCIS has  announced temporary suspension of biometrics requirement for certain form I-539 applicants from May 17, 2021.

The temporary suspension will cover applications to extend/change nonimmigrant status, requesting an extension of stay in or change of status to H-4, L-2, and E-1 nonimmigrant status.

Also covered is extension of stay in or change of status to E-2 nonimmigrant status. including E-2C, E-2 CNMI Investor, and to E-3 nonimmigrant status, including those selecting E-3D.

USCIS will allow adjudications for those specific categories to proceed based on biographic information and related background checks, without capturing fingerprints and a photograph, it said.

This suspension will apply only to the specified categories of Form I-539 applications that are either pending as of May 17 and have not yet received a biometric services appointment notice; or new applications postmarked or submitted electronically on or after May 17.

Form I-539 applicants who have already received a biometric services appointment notice should still attend their scheduled appointment, USCIS said.

From May 17, Form I-539 applicants are not required to submit the $85 biometric services fee for Form I-539 during the suspension period. USCIS said it will return a biometric services fee if submitted separately from the base fee.

USCIS said it will allow a short grace period during which USCIS will not reject Form I-539 filed with the biometric services fee.

USCIS will begin rejecting paper Form I-539 applications postmarked May 27 or later, if they submit a single payment covering both the filing fee and the $85 biometrics services fee.

If USCIS rejects the paper application because the applicant included the $85 biometrics service fee after the grace period, the applicant will need to re-file Form I-539 without the biometric services fee, it said.


USCIS to review rejected H-1B petitions with late start date (May 4, 2021)

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