DHS Rule Places New Restrictions on H-1Bs

Today, the Department of Homeland Security (DHS) published an interim rule that places additional restrictions on H-1Bs. This rule has been rumored for months and was rushed through the standard rulemaking process, bypassing the traditional notice and comment period. It is scheduled to go into effect in 60 days, however, bypassing standard rulemaking procedures does leave it open to potential legal challenges.

 

This rule, if it goes into effect, will do two primary things:

 

  • Specialty Occupation. It codifies the definition of “specialty occupation” and makes the criteria to meet specialty occupation more stringent. Specifically, the rule says that a bachelor’s degree specific to the H-1B position is required, and that positions allowing for “general degrees,” such as liberal arts or business management, would not be sufficient.
  • Third-Party Worksites. It also establishes new restrictions on employees who work at third-party worksites. This includes specific requirements to demonstrate employer-employee relationships, such as proving that the sponsoring company controls and supervises the work. It also limits the duration of third-party worksite H-1Bs to 1-year increments. It is important to note that employees working from their homes are not considered to be at a third-party worksite.

 

There are other provisions in the regulation, but the two items listed above will have the biggest impact on the H-1B process. It should be noted that this rule is going to face significant legal challenges, not only for bypassing the standard rulemaking procedures, but also for applying a different standard to “specialty occupation” that seems to go beyond what was contemplated in the original H-1B legislation.

 

It is possible to submit comments to the DHS on how this rule will impact employers, but the DHS is not required consider those comments before this rule is implemented. We will post updates on any legal action as they become available.

Insights on Proposed H-1B Regulation Changes

The American Immigration Lawyers Association (AILA) has published some information on the possible regulatory changes that could be coming in the near future for the H-1B classification.  According to AILA, we can anticipate several proposed changes to the H-1B regulations.  These changes could include redefining “specialty occupation” to make it more restrictive than the current definition.  Changes to the rules around “employer-employee” relationships as it relates to 3rd party worksite placements, including changes to LCA requirements to make the 3rd party host part of the LCA process, are apparently being considered.  It is also anticipated that the Department of Labor will adjust prevailing wage requirements, which would impact H-1B petitions.

 

It is anticipated that these rules will be published as interim final rules and will go into effect immediately upon publishing.  It is also anticipated that there will be lawsuits filed to challenge the new regulations, which could lead to injunctions that would delay implementation of these new rules.

 

AILA anticipates that these rules are likely to be rolled out within the next 30 days.

 

Graham Adair is monitoring these rules very closely and will provide additional information as it becomes available.