H-1B, Work Authorization Rules Under Review

September 28, 2020

By Immigration Group

This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh, Fredrikson Immigration Department Chair, is a member.

The Department of Homeland Security (DHS) has sent two rules to the Office of Management and Budget (OMB) for final review before publication:

  • An interim final rule on the H-1B nonimmigrant visa program. The rule is expected to redefine what constitutes an H-1B specialty occupation and an employer-employee relationship. In addition, DHS will propose additional requirements “to ensure employers pay appropriate wages to H-1B visa holders.” The rule has been listed in DHS’s regulatory agenda since 2017.

Some observers see this rule as yet another pre-election move by the Trump administration to restrict immigration. Lawsuits are likely to follow the interim rule’s publication, as there will be no notice-and-comment phase before the rule takes effect.

  • A proposed rule to eliminate eligibility for employment authorization for certain people who have final orders of removal but are temporarily released from custody on an order of supervision, with limited exceptions. DHS said it will also make other proposals related to eligibility and factors DHS will consider when adjudicating discretionary employment authorization applications filed by those who have been convicted of aggravated felonies or who have committed “violent or dangerous” crimes.

It is unclear when the rules will be published in the Federal Register.

”Proposal to Overhaul H-1B Visa Program Under White House Review,” Bloomberg Law

“H-1B Visa Denials Continue to Mount for Companies,” Forbes