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Alert: Dramatic H-1B Changes

Three major H1B rules have come into play in the past few months.

The first, a proposed rule that would replace the current random selection process for H-1B visas (the H-1B “lottery”) with a new wage-based selection process that would prioritize the selection of H-1B registrations for employers who pay the highest wages, is still in the notice and comment period, which ends today. So far, the government has received about 1,000 comments on this rule. Whether the administration can review and address all the comments, and put the rule into play before January 20, remains to be seen.

In this video Becki Young, Partner, and Khandi Sokoni, Counsel, provide details on how this proposed rule will affect you and how you can prepare:

The second and third rules are both interim final rules (meaning they became effective immediately on publication), one each from the Department of Labor (DOL) and Department of Homeland Security (DHS). They were struck down by a federal court yesterday, a major victory for H-1B workers and employers.

These rules collectively sought to redefine the term “specialty occupation,” place stricter limitations on third-party worksites, alter the way prevailing wage determinations are calculated, and make other substantial changes to the H-1B program, citing the ongoing pandemic and high unemployment rates as justification for instituting these rules without leaving time for notice and comment as required by the Administrative Procedures Act (APA).

Though the rules have been blocked for the time being, the denial was based on the Court’s finding that DOL and DHS were not justified in subverting the required regulatory notice and comment period. Under this ruling, it is possible that the Rules could proceed with time allowed for notice and comment and also possible the administration may also appeal the ruling entirely.

Right now, there is a (potentially brief) window of opportunity for H-1B employers to file extensions. Any employer with H-1B workers expiring any time in 2021 should consider initiating an extension immediately.

Good Reads: “Citizen Khan” – The New Yorker

This compelling article follows the journey of Zarif Khan, a Muslim immigrant from Afghanistan who came to the U.S. at the turn of the 20th century and found his way selling tamales in a small Wyoming town. Khan, lovingly known as Hot Tamale Louie, became a local legend not only for his outstanding food, but his limitless generosity and humility. A model of the American Dream, Khan became a successful (albeit secretive) businessman, supported his family back in the Middle East, and grew his own Muslim immigrant family in America.

Throughout his life, Khan obtained U.S. citizenship, had it stripped from him on the basis of race, and then, under new laws, obtained it a second time. This is a true story of the American Dream, with all its dark and strange realities.

"Citizen Khan" by, Kathryn Schulz, The New Yorker, May 2016: READ

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