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DHS issues interim final rule narrowing H-1B criteria

  1. Original Date Announced

    October 8, 2020

    DHS 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codifies USCIS's H-1B site visit authority, and reimposes contract and itinerary requirements that had been rescinded earlier this year.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 214
  2. Effective Date

    December 7, 2020
  4. Biden Administration Action

    January 20, 2021

    DOL 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 The department stated that the notices were withdrawn “for the purpose of considering the process for issuing this interpretation as well as reviewing related issues of law, fact, and policy.”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.

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  5. Biden Administration Action: Revoked/Replaced

    May 19, 2021

    2021.05.19 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.

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  6. Biden Administration Action: Revoked/Replaced

    October 23, 2023

    2023.10.23 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.

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Current Status

Not in effect

Most Recent Action

October 23, 2023 Action: Revoked/Replaced 2023.10.23 DHS Proposed H-1B Amendments
January 20, 2021
Acted on by Biden Administration
May 19, 2021
Acted on by Biden Administration
October 23, 2023
Acted on by Biden Administration

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