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EIG Summary | DHS Strengthens the H-1B Visa Classification Program

September 8, 2020

On September 5, DHS submitted strengthened H-1B visa rules to the Office of Budget and Management (OMB) for review under the “Interim Final Rule” stage. OMB’s review is the next step towards implementing the regulation.

This long-planned regulation aims to toughen H-1B eligibility criteria and impose new obligations on H-1B employers. Although the full submission is not yet published, the key changes of the H-1B visa regulation include the following;

  • DHS proposes to revise the definition of a specialty occupation.
  • The definition of employment and employer-employee relationship will be revised to better protect US workers and their wages.
  • The H-1B program will have additional requirements to ensure employers pay H-1B employees appropriately.

What does “Interim Final Rule” mean?

The US Federal rulemaking process includes a number of stages, if a rule is set to stage “Interim Final Rule” it will become effective as soon as it is published. This removes the ability of employers and the public from reviewing and providing comments before the regulation goes into effect.

What impact can this have on the H-1B program?

  • Increases in prevailing wage and wage level requirements.
  • Changes in DOL attestation requirements/exemptions on LCA ($60,000 or higher).
  • Additional specialty occupation qualifying criteria.
  • Limitations on qualifying degree fields.
  • Limits on Third-Party “Offsite” Placement (redefining “employer-employee relationship”).

What options are there moving forward?

OMB has up to 90 days to review the regulation, once cleared, it will be published in the Federal Register. After publication, the agency can take in public comments as required and decide to change the interim rule. If they do not make any changes to the interim rule, they can publish the final rule to the Federal Register.

Additionally, the change in stage from the normal “Proposed Rule” to “Interim Final Rule” has to be justified. It is likely that bypassing seeking public comments and review of the rule by the public will attract many legal challenges.

 

EIG is closely monitoring the rule and will provide updates as it advances through the federal review process.