DHS Proposing New Regulation to Change H1B Requirements

The U.S. Department of Homeland Security (DHS) has sent a proposed regulation to the Office of Management and Budget (OMB) that, if implemented, would potentially make significant changes to the H1B program. The text of the rule has not yet been released but based on the limited information provided – combined with the Trump Administration’s animus toward legal immigration and immigrants – there is cause to be concerned.

Proposed Rule

The title of the proposed rule is “Strengthening the H1B Nonimmigrant Visa Classification Program.” Per the description, the rule would seek to revise the definition of “specialty occupation” to increase the focus on obtaining “the best and the brightest” foreign nationals. The rule, if implemented, would also redefine both employment and the employer-employee relationship, ostensibly to protect U.S. workers and wages. It would further add measures to “…ensure employers pay appropriate wages to H1B visa holders.”

Rulemaking Process

The OMB has up to 90 days to review the rule. Only then can the rule be published in the Federal Register.

Under the normal rulemaking process, the rule would have to be published as a proposed rule, go through a notice and comment period, and then get published as a final rule. It would have no impact on the H1B process until then. However, there is the possibility that the Trump Administration will use the high unemployment rate caused by the COVID-19 crisis as a justification for bypassing the proposed rule stage, and instead may seek to publish the rule as an interim final rule. That would cause the rule to go into effect immediately.

Conclusion

The problem with the Administration’s tunnel vision is that research shows that hiring H1B professionals actually increases the wages of U.S. workers. Like many changes made by the Administration, one can expect lawsuits challenging the changes. MurthyDotCom will continue to closely track this story and provide updates as new information becomes available.

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