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DHS issues interim final rule narrowing H-1B criteria

  1. Date Announced

    Oct. 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codifies USCIS's H-1B site visit authority, and reimposes contract and itinerary requirements that had been rescinded earlier this year.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]

    See Biden administration action below.

    View Policy Document View Policy Document
  2. Effective Date of Change

    Dec. 7, 2020
  3. Subsequent Action

    October 19, 2020

    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.)

    **Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

    Chamber of Commerce of the U.S.A. et al. v. DHS (N.D. Cal. Oct. 19, 2020) - Complaint
  4. Subsequent Action

    December 1, 2020

    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.**

    Chamber of Commerce, et al., v. DHS, et al.: Order granting plaintiffs' motion for partial summary judgment
  5. Subsequent Action

    January 15, 2021

    DOL's Wage and Hour Division (WHD) issues a directive changing its interpretation of what constitutes and employment relationship for H-1B purposes.

    Wage & Hour Division FIELD ASSISTANCE BULLETIN No. 2021-1
  6. Subsequent Action

    January 15, 2021

    DOL's Office of Foreign Labor Certification (OFLC) issues a directive changing its interpretation of what constitutes and employment relationship for H-1B purposes.

    OFLC: H-1B Program Bulletin Clarifying Filing Requirements for Labor Condition Applications by Secondary Employers
  7. Biden Administration Action

    January 20, 2021

    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.

    DOL Website: Withdrawal of H-1B notice
  8. Biden Administration Action

    May 19, 2021

    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.

    2021.05.19 Strengthening the H–1B Nonimmigrant Visa Classification Program, Implementation of Vacatur

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