Agency Confirmations, Independent Contractor and H-1B Regulations, Pending Legislation

This update covers several legislative and regulatory developments, including today’s breaking news regarding the expiration of a Presidential Proclamation that restricted issuance of new nonimmigrant visas. The TechServe Alliance Government Affairs Team also asks for your input on independent contractor use and pending/proposed regulations. For more detailed information, questions, or to share your stories, please contact Julie Strandlie at strandlie@techservealliance.org.

Trump Administration Proclamation Restricting Nonimmigrant Visas Expires Today

The Biden Administration on March 30, 2021 announced that Presidential Proclamation 10052, which restricted nonimmigrant visas from June 2020 to March 31, 2021, would expire today.

At the early stages of the pandemic, the Trump Administration issued the “Proclamation on Suspension of Entry of Immigrants and Nonimmigrants Who Continue to Present a Risk to the United States Labor Market.” Proclamation 10052 suspended new H-1B, H-4, H-2B, L, and J visas until December 31, 2020. On December 31, 2020 Trump Administration extended the Proclamation through March 31, 2021.

The Trump Administration claimed that visas had to be withheld to protect U.S. jobs when hundreds of thousands were out of work due to COVID-19, projecting that 525,000 American jobs would be available to U.S. workers as a result of the order. The U.S. Chamber of Commerce and the National Association of Manufacturers successfully filed suit and their members were exempted.

While the Biden Administration immediately revoked the “Buy American, Hire American” Executive Order, stakeholders were concerned when the new Administration did not immediately repeal Proclamation 10052. On March 16, 2021, a bipartisan group of Senators (Menendez (D-NJ), Bennet (D-CO), Sheehen (D-NH), King (I-ME), Booker (D-NJ)) wrote President Biden asking for immediate action noting the urgent need for temporary employees for summer positions.

The Senators were also concerned that “[l]ooking ahead to long-term economic recovery, the deficit of foreign workers to fill available American tech jobs will worsen through any further lack of access to foreign talent. Reports also suggest that many jobs in fields such as information technology that would have been filled by H-1B nonimmigrants have remained open or were moved permanently overseas.”

DOL to Withdraw Independent Contractor Regulations; TechServe Seeks Member Input

The Department of Labor on March 11, 2021 announced through a new notice of proposed rulemaking (NPRM) its intention to withdraw the Trump Administration’s Independent Contractor Final Rule. Comments on the withdrawal are due by April 12. The TechServe Government Affairs Team seeks input from members who rely on independent contractors. While this NPRM focuses on the withdrawal of the current rule, we anticipate a new round of rulemaking in the near future.

In response to the Trump Administration NPRM, TechServe submitted comments in October 2020 in support of the Department of Labor’s proposed independent contractor rule (under the Fair Labor Standards Act) based on an economic reality test. The proposed rule supported by TechServe was finalized and published in the Federal Register on January 7, 2021. The rule was scheduled to go into effect on March 8, 2021. On January 20, 2021, the Biden Administration announced a freeze on several rules, including the IC rule, that were finalized in the last days of the previous administration. See “White House “Regulatory Freeze” Memo Dooms DOL Independent Contractor Rule.”