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New Regulation to Toughen H-1B Requirements Under Review

Posted September 8, 2020Stephanie Wedel - Sr. AssociateH-1B

 

The Department of Homeland Security (DHS) has submitted a regulation to the Office of Management and Budget (OMB) that will toughen the H-1B eligibility criteria and impose new requirements on H-1B employers.  This review is the next step toward having the regulation take effect, which the Trump administration has made a priority since the proclamation suspending entry of certain H-1B, L-1, and J-1 non-immigrants.  

DHS is intending to issue the regulation as an interim final rule so it can be implemented immediately. This fast-track plan prevents the public from providing feedback before the rule takes effect.

The details of the regulation will remain confidential until the rule is released for publication.  The rule is expected to revise the definition of specialty occupation, H-1B employment, and employer-employee relationship.  It is anticipated there will be a restriction on offsite placement for H-1B workers, including a joint labor condition application (LCA) requirement.

Expectations

OMB has up to 90 days to review the regulation, but this review can be completed sooner. Once review is completed, the regulation will be published to the Federal Register and is expected to take effect immediately after publication.

We expect this change in regulations to be enjoined in a lawsuit as the immediate implementation without public comment will likely be found unreasonable by a court.

We are closely monitoring the matter and will provide updates as they are made available.

Please contact your designated Meltzer Hellrung attorney or consultation@meltzerhellrung.com with any questions.