DHS Rule to Toughen H-1B Program Criteria Is Now Under Federal Review on a Fast Track

The Department of Homeland Security has submitted to the Office of Management and Budget (OMB) a long-planned regulation to toughen H-1B eligibility criteria and impose new obligations on H-1B employers. OMB review is the next step toward implementing the regulation, which President Trump made a priority in his recent proclamation restricting the entry of H-1B, L-1 and certain J-1 nonimmigrants. 

DHS plans to issue the regulation as an interim final rule with immediate or near-immediate impact. This means that employers and other members of the public would not have an opportunity to provide public feedback before the rule takes effect. 

Though the contents of the regulation will remain confidential until released for publication, the rule is expected to revise the definition of an H-1B specialty occupation to “increase focus on obtaining the best and brightest foreign nationals.” It is also expected to change the definitions of H-1B employment and the employer-employee relationship, with a likely focus on restriction of offsite placement of H-1B workers.  This could lead to a requirement that H-1B employers and end clients jointly obtain labor condition applications (LCAs) for H-1B workers at client sites. A joint LCA requirement could create de facto joint employer liability for compliance with obligations concerning H-1B wages and working conditions. The regulation could also address other aspects of H-1B wage requirements.

What’s next for the regulation

OMB has up to 90 days to review the regulation, but could take less time given the rule’s importance to the Trump Administration. Once OMB clears the regulation, it will be published in the Federal Register and is expected to take effect immediately or shortly after publication. The regulation is expected to be challenged in court.