DHS has finally submitted their H1B tightening rules for OMB approval.
The agenda to change H1B visa eligibility criteria has been put on the fast track after Trump’s executive order signed on Aug 3 even though it was pending for the last 2 years.
This item also appeared on their spring 2020 agenda and now has been expedited.
The exact contents of the H1B rules sent to OMB are not available publicly yet but they are most probably aimed at making it difficult than current rules.
This article will discuss:
DHS Planned H-1B Changes (Expected)
#1 Revise Specialty Occupation Definition
Lawyers claim that it is difficult to change the definition without passing the law in congress.
DHS may be looking at a lawsuit if they do go ahead with it and changing the specialty occupation definition.
#2 Revise Employer Employee Relationship
The rule would also restrict which companies would be eligible for an H-1B based on the “employer-employee relationship”.
The new change may require H-1B employers and end clients to jointly obtain labor condition applications (LCAs) for H-1B workers at client sites.
A joint LCA requirement will create a joint employer liability for H-1B wages and working conditions.
Even though there is no clear mention of anything, but looks like DHS is planning to target third party consulting companies here.
#3 Revise Wage Level 1 for H1B eligibility
In addition, DHS will propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.
The chances are high that wage level 1 would probably be removed from H1B qualification. If it does, it would hit international students looking to get H1B sponsorship right after finishing studies in the USA.
Non-US citizen students make the biggest part of the chunk that ride on wage level 1 salary as an entry-level H1B worker.
Rule Making Timeline (90 days or less)
OMB has 90 days to review the rules that DHS has submitted after Trump’s proclamation.
It is expected that they will speed up the process and give approval before Nov 2020 elections as Trump government is looking at gaining anti-immigrant votes.
The main problem is that due to the President’s executive order, this OMB approval does not need to go through the usual public comments procedure.
Fragomen says that OMB can approve it and publish it in the federal register immediately. If it happens, you are looking at new rules effective immediately and that too in less than 90 days from now.
A lawsuit is imminent if OMB approves and implements the new H1B rules immediately without public comments.
But, if the rules are applied and until the court case is filed and a stay is obtained, you will have to live by the new process.
A similar proposed rule to withdraw H4 EAD work authorization has been in draft stage since DHS 2017 fall agenda.
The Trump administration is riding high on its political agenda and targeting H1B and their families with a new rule almost every month under his ‘Buy American Hire American‘ policy.