The Department of Homeland Security officially vacated a regulation that would have altered the H-1B specialty occupation definition, provided greater restriction H-1B employees who are placed offsite, and added compliance obligations.
The vacatur is a response to a federal court ruling that set the regulation aside as the agency didn’t prove a good cause to eliminate the notice and comment rulemaking. This is a violation of the Administrative Procedures Act.
The regulation was never in effect, formally. However, the removal of the regulation by DHS reinstates previous longstanding H-1B criteria into the Code of Federal Regulations (CFR).
DHS and DOL had issued companion rules in October of 2020. The rules focused on employment-based immigration with a specific focus on the H-1B program. Issued as interim final regulations, they may have taken effect without any public comment period. At the time the justification by the DHS and DOL stated that a fast track was required due to the impact of the global pandemic on the U.S. economy and workers.
The rule issued by the DHS would have revised the definition of ‘specialty occupation”. In addition, requirements of H-1B employees placed at third-party worksites would have been adjusted. Finally, contract and itinerary requirements would have been reinstated.
The DOL rule restructured the wage system for H-1B, H-1B1, E-3, and nonimmigrant cases as well as the PERM program. The result would have been higher government prevailing wage minimums for foreign workers with these visa types.
As the DOL has vacated this ruling, it no longer poses any concern for companies or individuals.
We continue to monitor ongoing updates in U.S. immigration policy. If you have questions about employment-related immigration or any other immigration topic, contact us at ILBSG.
