The Department of Homeland Security (DHS) recently sent an interim final rule to the Office of Management and Budget (OMB) for review that will revise the definition of specialty occupation and the definition of employment and employer-employee relationship. The rule also is expected to include additional requirements regarding wages for H-1B visa holders. Observers are calling it an “overhaul” of the H-1B program.
The rule is no real surprise, as it has been included on DHS’s regulatory agenda since 2017. It is part and parcel with an overall Trump administration effort to limit immigration in large and small ways, including Presidential Proclamations and regulatory efforts.
With respect to the H-1B program, this latest rule follows on the heels of litigation in ITServe Alliance, Inc., v. USCIS, in which U.S. Citizenship and Immigration Services (USCIS) entered into a settlement agreement that requires the agency to reopen and readjudicate several hundred H-1B denials and rescind a related February 2018 policy memorandum. The court said USCIS had misread the law on specialty occupations in support of its “itinerary” requirement that employers petitioning for H-1B employment at third-party worksites provide extensive details, such as dates and locations of all potential work assignments, over the entire period of future employment. That case also required USCIS not to apply its interpretation of the definition of employer as requiring an analysis of the employer-employee relationship under common law.
All of this tracks along with an overall uptick in H-1B denials and enforcement actions against U.S. employers suspected of abusing the H-1B program, in line with President Trump’s order to federal agencies to “ensure that H-1B visas are awarded to the most-skilled or highest-paid beneficiaries.” Despite this declaration of a focus on admitting foreign workers on the basis of merit, the Trump administration continues to deny—at high levels—H-1B petitions for foreign-born scientists and engineers, who presumably are among the “most-skilled.” Denial rates are up for all of the top 25 employers of new H-1B professionals, and denial rates for new H-1B petitions for initial employment rose from 6 percent in fiscal year (FY) 2015 to 29 percent through the second quarter of FY 2020, according to the National Foundation for American Policy.
It is unclear when within the 90-day maximum OMB will approve the interim final rule for publication. DHS has skipped several of the usual regulatory steps in an apparent effort to push this rule through quickly. Because it will be published as an interim rule, notice and comment will not be considered before implementation. Court challenges are expected immediately upon publication.
- Description of interim final rule, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202004&RIN=1615-AC13
- “Proposal to Overhaul H-1B Visa program Under White House Review,” Bloomberg Law, https://news.bloomberglaw.com/daily-labor-report/proposal-to-overhaul-h-1b-visa-program-under-white-house-review
- “High-Skill Immigration Restrictions Expected Soon From Trump,” Forbes, https://www.forbes.com/sites/stuartanderson/2020/05/28/high-skill-immigration-restrictions-expected-soon-from-trump/#56317afe6a89
- “H-1B Visa Denials Continue to Mount for Companies,” Forbes, https://www.forbes.com/sites/stuartanderson/2020/08/31/h-1b-visa-denials-continue-to-mount-for-companies/#3d11079d1262
- “H-1B Compliance in the Time of COVID-19,” Wolfsdorf Rosenthal blog, https://wolfsdorf.com/blog/2020/04/06/h-1b-immigration-compliance-in-the-time-of-covid-19/
- “Under Settlement Agreement, USCIS Must Reopen Hundreds of Denied H-1B Cases,” Wolfsdorf Rosenthal blog, https://wolfsdorf.com/blog/2020/06/15/under-settlement-agreement-uscis-must-reopen-hundreds-of-denied-h-1b-cases/
- ITServe Alliance, Inc., v. USCIS settlement agreement, https://bit.ly/30Efdhh
- “H-1B Denial Rates Through the Second Quarter of FY 2020,” NFAP Policy Brief, National Foundation for American Policy, https://nfap.com/wp-content/uploads/2020/08/H-1B-Denial-Rates-Analysis-Through-The-Second-Quarter-Of-FY-2020.NFAP-Policy-Brief.August-2020.pdf
- Executive Order, “Buy American and Hire American,” https://www.whitehouse.gov/presidential-actions/presidential-executive-order-buy-american-hire-american/