Changes to H-1B under White House Review & Subject to DOL Rule

A proposed Department of Homeland Security (DHS) rule clarifying which jobs qualify for high-skilled H-1B visas and defining an employment relationship is under final review in the White House.

The rule is set to make fundamental changes to the H-1B visa route by:

  • Amending the list of jobs that may be eligible under the H-1B route
  • Modifying the USCIS definition of a qualifying employee-employer relationship
  • Restricting further the offsite placement of H-1B workers
  • Clarifying the definition of an H-1B speciality occupation
  • Requiring employers to pay H-1B visa employees with appropriate wages
  • Additional H-1B regulatory activity may also be implemented

The DHS has also proposed changes to work permits. These include:

  • Eliminating employment authorization eligibility for certain individuals who have final orders of removal, but who have been temporarily released from custody on an order of supervision (with certain exceptions).
  • Amending eligibility criteria for work authorization applications when adjudicating work authorization applications from individuals who have committed violent or dangerous crimes, or who have been convicted of an aggravated felony.

The rule was submitted to the White House for final review in early September. The regulation will then be released for public comment.

Wage requirements under review

Fast-tracked changes have also been proposed by the Department of Labor (DOL) to the US Office of Management and Budget (OMB). The OMB is currently reviewing a DOL rule seeking to alter the structure of the wage level system that sets wage minimums for the H-1B visa, among others such as the E-3 and PERM programs.

It is expected that the regulation will, for each of the four programs, increase wage requirements for employers and raise the minimum wage.

The specific details will not be made public until after the OMB review. While public consultation would generally follow, the DOL is expected to be planning to issue the changes as an interim final rule that will take immediate or near-immediate impact, removing the window for public consultation prior to implementation.

US immigration advice

NNU Immigration are specialist US attorneys based in London. For advice on US visas or immigration, including guidance on policy and rule developments, please contact us.

This article does not constitute direct legal advice and is for informational purposes only.

Last updated: September 5, 2020