On September 3, 2020, U.S. Citizenship and Immigration Services (USCIS) submitted a program named, “Strengthening the H-1B Nonimmigrant Visa Classification.”

It is anticipated that the administration will publish the regulation, which would take effect without the agency first evaluating and responding to public comments, possibly upon publication.

Soon after publication of the USCIS IFR, on September 16, 2020, the U.S. Department of Labor (DOL) submitted another Interim Final Rule to OIRA entitled, “Restructuring of H-1B/H-1B1/E-3 and PERM Wage Levels”.

Here the administration plans to publish this regulation as an Interim Final Rule and that it could become effective immediately upon publication. The USCIS and DOL Interim Final Rules are expected to combine to substantially modify prevailing wage requirements so as to limit the availability of the H-1B visa program to the most highly paid professionals, regardless of actual wage data for the labor market.

Below are stated the key differences between the interim final rule and the notice of the new regulatory process, and a preview of the expected requirements and possible legal challenges that this regulation may face.

Expected Provisions

Although the exact wording of the upcoming regulations will not be accessible until they are released in the Federal Register, based on the regulatory agenda and other hints, it is expected to contain the following:

Revision of the H-1B specialty occupation concept to “increase focus on obtaining the best and brightest foreign nationals”

Changes to the definitions of H-1B employment and the employer-employee relationship, with an emphasis on limiting offsite placement of H-1B workers.

To resolve legal issues raised in the ITServe Alliance litigation, in May 2020, USCIS entered into a settlement agreement which resulted in the issuance of the “Rescission of Policy Memorandum” by USCIS. It is expected that the Interim Final Rule will revise the regulatory definition of “United States Employer” and the interpretation of “employer-employee relationship” to restrict the availability of the H-1B visa program where there is third-party placement of H-1B workers.

Possible requirement that H-1B employer and their end clients jointly obtain LCAs where H-1B workers will work at client sites.

The regulation may incorporate a revision to the Labor Condition Application (LCA) clause. Joint employer liability may be defined de facto through a joint LCA clause.

Additional H-1B wage requirements “to ensure employers pay appropriate wages to H- 1B visa holders” as well as a restructuring of the H-1B, H-1B1, E-3 and PERM prevailing wage levels.

Interim Final Rule versus Notice of Proposed Rulemaking

Notice of Proposed Rulemaking: Traditionally, the notification of a proposed regulatory procedure requiring the publication of a proposed rule or notice is mandated by a new regulation, accompanied by a comment period of at least thirty to sixty days. After the comment period is closed and comments are reviewed, an agency is then able to publish a Final Rule with an effective date no less than thirty days after publication.

Interim Final Rule: An Interim Final Rule, by contrast, is a rule released as a final rule becoming effective without the agency first reviewing and reacting to public feedback. An agency can issue an Interim Final Rule if advance notice and otherwise consultation will be needed if it has good cause to do so. This usually means that going through the usual process is "impracticable, unnecessary, or contrary to the public interest.”

The final step before issuance of a regulation is the submission of a rule to the OMB which typically takes up to ninety days to. Once OMB clears the regulations, they will be published in the Federal Register.

The election coming in November and the risk of a change of government coming in January make the timing of this regulation quite essential.

Litigation Challenging the Regulations

While many measures that could update the practices of many business immigration lawyers could be included in the anticipated laws, litigation challenging the regulations is expected. A few justifications for a legal challenge may include:

Several of the planned amendments tend to be inconsistent with the current specialty occupation laws.

If provided as an Interim Final Regulation, the agency would also need to explain the reason for its decision that "reasonable cause" exists to bypass the usual phase of notice and comment.

The Administrative Litigation Taskforce of AILA regularly monitors these regulations and assesses possible methods for litigation. We will inform our readers with any updates.

What’s Ahead..

Senior Policy Advisor Stephen Miller’s goal is restricting the H-1B visa program. However, since issuing this regulation as an Interim Final Rule poses many threats and makes a successful legal challenge more likely, it could be that the year-end drive of this Interim Final Rule is just "red meat for the base."

If, after a legal appeal, a federal court issues an injunction, it is unlikely that there will be sufficient time for a rule to be republished and public input to be addressed-unless there is a second term of the Trump Presidency.

For any questions regarding this publication and how it may affect you, contact our office.

AILA Doc. No. 20092832