DHS Sends New H-1B Visa Regulation For Final Review

Last Updated on February 23, 2023

October 6 Update: Envoy Global and Global Immigration Associates (GIA) are aware of the rules that were released today that would impact the definition of the H-1B specialty occupation and alter the procedure for determining prevailing wages. The new regulations are lengthy and will require review and analysis before their impact on specific companies and individuals can be determined. 

We understand that today’s announcement may be causing significant anxiety among foreign national workforces, and we will be providing more information after we have ensured that we are providing complete and accurate guidance. 

Please also note that the regulation altering the H-1B definition is not expected to take effect until December 7, 2020, and we expect that it will be challenged in court, which could delay or prevent its implementation. We encourage all clients to monitor the Announcements section of their account for more details.

This update was prepared in collaboration with Ian Love, who is a Managing Attorney at Global Immigration Associates, P.C. (www.giafirm.com), Envoy’s affiliated law firm.

The Department of Homeland Security (DHS) on Thursday submitted a proposal to overhaul the H-1B visa program to the White House for final review.

What Happened?

DHS has sent a new regulation that would amend eligibility requirements for the H-1B visa to the Office of Management and Budget (OMB) for final review. This is typically the last step before publication of a final rule. The proposal has been on President Trump’s regulatory agenda since 2017.

What does the new regulation change?

The new H-1B visa regulation proposes to revise the definition of a specialty occupation within the program, as well as the definition of employment and employer-employee relationship in an effort to protect U.S. workers and wages.

In addition, the regulation proposes to provide additional requirements for employers of H-1B nonimmigrants to ensure these employees are being paid appropriately.

What happens next?

Following OMB review, the new regulation is expected to be  published as an “interim final rule,” which will put it into effect immediately without a public comment period or a 30-day delayed effective date.

The new rule is likely to be challenged in the court system.

Earlier this year, U.S. Citizenship and Immigration Services (USCIS) settled a lawsuit after a district court ruled that its policies scrutinizing employer-employee relationships were unlawful. Another attempt by the agency to impose new degree requirements for specialty occupations was also struck down in court this year.

How are Envoy Global and Global Immigration Associates (GIA) responding?

Envoy and Global Immigration Associates are monitoring the situation closely and will continue to provide updates as they become available.

Envoy is pleased to provide you this information, which was prepared in collaboration with Sara Herbek, who is Managing Partner at Global Immigration Associates, P.C. (www.giafirm.com), Envoy’s affiliated law firm.

Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult an Envoy-affiliated attorney or another qualified professional.