DHS Proposing Rule to "Strengthen" the H-1B Nonimmigrant Visa Classification Program

ImageChanges are coming on the H-1B front, and likely none of them good. The Department of Homeland Security will be proposing a rule that, among other things, will attempt to revise the definition of specialty occupation, revise the definition of employment and employer-employee relationship, and craft additional requirements designed to ensure employers pay the requisite wages to H-1B visa holders. The rule is currently in the early stage of proposed rulemaking, and details are skim. However, given the track record of this administration, we can be almost certain that it will impose additional undue burden and hardship on both employers/employees seeking H-1B visas, and the attorneys filing for them. Given that the definition of "specialty occupation" is codified in statute, DHS/USCIS cannot change the definition through rulemaking; Congress must pass a new law. This rule, when finally published and promulgated, is, thankfully, certain to face significant legal challenges, and hopefully will be enjoined from taking effect. We will continue monitoring the situation closely and inform our readers as more information becomes available.

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DHS/USCIS

RIN: 1615-AC13

Publication ID: Spring 2019

Title: Strengthening the H-1B Nonimmigrant Visa Classification Program

Abstract:The Department of Homeland Security (DHS) will propose to revise the definition of specialty occupation to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program, and revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages. In addition, DHS will propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.

Agency: Department of Homeland Security(DHS)

Priority: Other Significant

RIN Status: Previously published in the Unified Agenda

Agenda Stage of Rulemaking: Proposed Rule Stage

Major: Undetermined

Unfunded Mandates: Undetermined

EO 13771 Designation: Other

CFR Citation: 8 CFR 214.2(h)(4)

Legal Authority: 8 U.S.C. 1184

Legal Deadline:  None

Timetable:

ActionDateFR Cite

NPRM

08/00/2019

Regulatory Flexibility Analysis Required: Undetermined

Government Levels Affected: Undetermined

Federalism: Undetermined

Included in the Regulatory Plan: Yes

RIN Information URL: www.regulations.gov

Public Comment URL: www.regulations.gov

RIN Data Printed in the FR: No

Agency Contact: Brian Hunt Acting Chief, Business and Foreign Workers Division, Office of Policy and Strategy Department of Homeland Security U.S. Citizenship and Immigration Services 20 Massachusetts Avenue NW, Suite 1200, Washington, DC 20529-2200 Phone:202 272-8377 Fax:202 272-1480 Email: brian.j.hunt@uscis.dhs.gov