Biden Administration Withdraws DHS Rule that Targeted Consulting Firms

In the final days of the Trump Administration, the U.S. Department of Homeland Security (DHS) attempted to rush through a regulation that would have required both H1B employers and end-clients to submit H1B petitions for workers placed at client sites. Because this was a final rule, the expectation was that the Biden Administration would not be able to withdraw the rule before it was enacted. However, although Trump signed the final rule prior to leaving office, his administration failed to have it printed in the Federal Register. By missing this critical step, the future of this rule is now in the hands of the Biden Administration.

Shortly after being sworn into office, the Biden Administration issued a memorandum to the heads of all executive agencies, including the DHS, to withdraw any rule that has not yet been published in the Federal Register. Accordingly, the DHS is now required to review this rule and determine how to proceed. It seems highly unlikely that the Biden Administration will move forward with the rule in its present form, if at all.

On the same day this final rule was signed by Trump, the U.S. Department of Labor (DOL) issued a bulletin related to the DHS final rule, which was to require end-clients to also file labor condition applications (LCAs). This DOL bulletin now presumably will be rescinded.

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