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Original Date Announced
October 8, 2020DHS issues on October 8, 2020, an interim final rule restricting criteria for the H-1B program. The rule revises key H-1B definitions such as “specialty occupation,” limits third-party placement H-1B validity to one year increments, raises evidentiary requirements, codifies USCIS's H-1B site visit authority, and reimposes contract and itinerary requirements that had been rescinded earlier this year. The rule follows from POTUS's June proclamation restricting the entry of H-1B and other nonimmigrant workers, stating that these changes are due to the economic crisis caused by the COVID-19 public health emergency. This IFR was signed by Chad Mizelle, Senior Official Performing the Duties of the General Counsel, on behalf of Acting Secretary Wolf. The rule was by the U.S. District Court for the Northern District of California.
Subsequently, on January 15, 2021, DHS issues an interim final rule that finalizes one section of the October 8 interim rule, changing and broadening the definition of the employer-employee relationship by incorporating what it terms common law elements into the definition of an employer. By broadening the definition, USCIS is now requiring the entities that use the services of the H-1B worker ("secondary employers") to also file H-1B petitions if they meet the broader definition.
[ID #1092]
Interim Final Rule: Strengthening the H–1B Nonimmigrant Visa Classification Program 8 CFR Part 214Effective Date
December 7, 2020Subsequent Trump-Era and Court Action(s)
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October 19, 2020
Chamber of Commerce of the U.S.A. et al. v. DHS (N.D. Cal. Oct. 19, 2020) - Complaint
On October 19th, 2020, the U.S. Chamber of Commerce, Stanford University, and other business groups filed a lawsuit challenging this rule (along with DOL's simultaneously-issued rule) as a "coordinated assault on the H-1B visa category." See Chamber of Commerce of the United States of America et al v. United States Department of Homeland Security et al, 3:20-cv-07331 (N.D. Cal.)
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**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.** -
December 1, 2020
Chamber of Commerce, et al., v. DHS, et al.: Order granting plaintiffs' motion for partial summary judgment
Finding that the government failed to show good cause for effectuating a new rule without first conducting APA notice and comment, the U.S. district court for the Northern District of California sets aside both the DOL and USCIS rules regarding H-1Bs.
**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**
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January 15, 2021
Wage & Hour Division FIELD ASSISTANCE BULLETIN No. 2021-1
DOL's Wage and Hour Division (WHD) issues a directive changing its interpretation of what constitutes an employment relationship for H-1B purposes.
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January 15, 2021
OFLC: H-1B Program Bulletin Clarifying Filing Requirements for Labor Condition Applications by Secondary Employers
DOL's Office of Foreign Labor Certification (OFLC) issues a directive changing its interpretation of what constitutes an employment relationship for H-1B purposes.
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Biden Administration Action
January 20, 2021DOL Website: Withdrawal of H-1B notice
This Biden administration policy withdraws one of the Trump-era policies identified in this entry.
On January 20, 2021, the Labor Department withdrew Wage and Hour Division and the Office of Foreign Labor Certification directives and a Federal Register notice, that would have required all entities meeting a newly-articulated common law definition of "employer" to file labor condition applications (LCAs) for H-1B specialty occupation workers performing duties in their workplaces. The department stated that the notices were withdrawn “for the purpose of considering the process for issuing this interpretation as well as reviewing related issues of law, fact, and policy.” The language reflects a memorandum from Biden’s Office of Management and Budget to freeze most of the previous administration’s regulations that have not yet been published or are awaiting effective dates.
View DocumentBiden Administration Action: Revoked/Replaced
May 19, 20212021.05.19 Strengthening the H–1B Nonimmigrant Visa Classification Program, Implementation of Vacatur
This Biden administration policy revokes in its entirety the Trump-era policy identified in this entry.
On May 19, 2021, DHS issued a Final Rule removing the October 2020 Interim Final Rule from the CFR, implementing the district court's vacatur of the rule.
View DocumentBiden Administration Action: Revoked/Replaced
October 23, 20232023.10.23 DHS Proposed H-1B Amendments
This proposed Biden administration policy would replace the already-revoked Trump-era policy identified in this entry.
On October 23, 2023, DHS issued a proposed rule to amend H-1B regulations. Some of the proposals closely mirror the Trump-era policy identified in this entry but no longer in effect, such as the proposed revised definition of "specialty occupation" and codification of site visits. Other proposals are opposite to the 2020 rule, such as to remove reference to "employer-employee relationship" from the definition of "U.S. employer" and to eliminate the H programs' itinerary requirements.
View DocumentCurrent Status
Not in effectMost Recent Action
October 23, 2023 Action: Revoked/Replaced 2023.10.23 DHS Proposed H-1B AmendmentsJanuary 20, 2021Acted on by Biden Administration
May 19, 2021Acted on by Biden Administration
October 23, 2023Acted on by Biden Administration
Original Trump Policy Status
Trump Administration Action: RuleSubject Matter: Non-Immigrant Visas: Employment-BasedAssociated or Derivative Policies
- April 18, 2017 POTUS issues "Buy American and Hire American" EO 13788, calling for H-1B reform proposals
- April 22, 2020 COVID-19: POTUS issues proclamation suspending entry of designated immigrants for 60 days
- January 14, 2021 DOL issues rule restructuring prevailing wage system, increasing minimums
- January 15, 2021 DOL expands applicability to secondary employers of filing requirements for LCAs
Pre Trump-Era Policies
Commentary
New DHS Rule Tightens H-1B Program Criteria
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