IMMIGRATION: Rulemaking on High-Skilled Work Visas May Frustrate Employer Talent Goals

Rulemaking on high-skilled visas will take center stage as legislative efforts are expected to stall in Congress. Several proposed rules for such visas, including those addressing wage requirements and redefining the employee-employer relationship, may prove an obstacle to employers’ talent efforts.

Legislative action on immigration unlikely: The Build Back Better “reconciliation” bill’s several immigration provisions are unlikely to survive the Senate Parliamentarian’s review. She has already rejected Democrats’ plans “A” and “B” to include immigration provisions in the reconciliation legislation, and plan “C” is expected to be rejected also. With continued congressional gridlock and the 2022 midterm elections looming, movement on any immigration bill is unlikely.

Meanwhile, the DACA program hangs by a thread: The Department of Homeland Security proposed a regulation to formally establish the Deferred Action for Childhood Arrivals program to address the procedural aspects of a federal district court’s decision to vacate the program. However, the fate of the program will depend on whether the Fifth Circuit Court of Appeals takes a different view of the substantive issues. A ruling maintaining the program is considered unlikely and legislation remains the only surefire way to protect Dreamers, who represent a valuable portion of the U.S. workforce.

Rulemaking activity on high-skilled visas to take center stage in 2022: The Fall 2021 regulatory agenda held few surprises in terms of changes to H-1B visas for high skilled workers. We can expect several troubling rulemakings in 2022 regarding hiking wage requirements for H-1B workers and redefining the employee-employer relationship, which could create joint employer confusion.

The good news: The Biden administration is no longer defending an invalidated Trump-era policy that would have severely restricted employers’ ability to hire early- to mid-career workers on H-1B visas, and it is unclear whether we can expect a future proposal along similar lines.