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DHS Formally Rescinds a Regulation that Sought to Tighten H-1B Program Criteria

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H1B Visa

The Department of Homeland Security (DHS) has removed from the Code of Federal Regulations (CFR) an 8th October 2020, interim final rule (IFR) that would have tightened the criteria for the H-1B program. Although the Trump-era guideline never took effect because of a federal court ruling. The present notification officially revokes it and reinstates longstanding H-1B eligibility criteria.

The notice has been published in the Federal Register on 19th May 2021.

Background on the IFR and litigation | H-1B Program Criteria

On 8th October 2020, DHS and DOL gave companion rules targeting employment-based immigration, and especially the H-1B program. The rules were given as interim final regulations, which means they could take effect before public comments were considered. The agencies justified expedited review and implementation of the rules on the grounds that a fast track was important to help U.S. workers amid the economic impact of the COVID-19 pandemic.

The DHS rule, which was scheduled to take effect on 7th December 2020, would have revised the definition of “specialty occupation”. Placed new restrictions on the placement of H-1B workers at third-party worksites, and reestablished agreement and itinerary requirements. The DOL rule, which took effect quickly on 8th October 2020, rebuilt the prevailing wage system for H-1B, E-3, and H-1B1 nonimmigrant cases and the PERM labor certification program. Resulting in significantly higher government prevailing wage minimums for foreign professional workers.

[H-1B visa approvals should be for six years, suggests CATO Institute’s, David Bier]

The rules were quickly challenged in court, and on December 1, 2020. A federal district court in California put them away. Also, observing that the agencies did not have a great aim to bypass notice and comment rulemaking in violation of the Administrative Procedures Act.

The two agencies promptly suspended the implementation rules. However, DOL, at last, published a revised version of its prevailing wage rule. After taking the comments it received in response to the IFR into consideration. That rule is scheduled to take effect in November 2022.

What today’s notice in the Federal Register means for employers

By reestablishing the earlier regulatory language, DHS is putting to rest the Trump-era guideline. However, the Biden Government may propose its own regulatory changes to the H-1B program in the future.

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