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The Biden administration has lifted a regulation proposed by former US President, Donald Trump, which sought to narrow the definition of ‘speciality occupation’ under the H1B visa program. The removal of the regulation is a welcome relief for Indian IT firms in particular, which are the biggest beneficiaries of the US H1B visa program.
It’s understood that the US Department of Homeland Security (DHS) has formally removed the regulation that would have redefined H1B speciality occupations, while also restricting the off-site replacement of H1B employees, and increasing employer compliance requirements.
The news comes amid a federal court ruling that set aside the regulation because the DHS did not have grounds to bypass notice and comment rulemaking, which would be in violation of the Administrative Procedures Act.
Final rule
United States Citizenship and Immigration Services (USCIS) recently announced that the DHS had issued a final rule to remove an interim final rule (IFR) that had been issued in October 2020, and has since been vacated by a federal district court, from the Code of Federal Regulations (CFR).
The US Department of Labor (DoL) IFR changed the way in which it calculates the prevailing wage rates and amended the prevailing wage percentiles for some levels of H1B visa applicants.
Meanwhile, the DHS IFR simultaneously made a number of key changes to the H1B visa program, specifically a revision to the regulatory definition of ‘speciality occupation’, plus the employer-employee relationship and a reduction in the validity period for H1B visa workers employed at third-party job sites from three years to one year.
Northern District Court of California
On December 1, 2020, the US District Court for the Northern District Court of California issued an order blocking two IFRs proposed by the DHS and DoL, which would have restricted the ability of US firms to hire foreign-born employees on H1B visas.
The DHS IFR was due to come into force on December 7, 2020, but didn’t as a result of the court’s ruling. Meanwhile the DoL’s IFR is no longer active.
Nasscom welcomed the court’s ruling back in December saying: “It clearly recognizes the value of high skill visa programs to the US and that the IFRs previously issued did not hold legal statute.”
Meanwhile, the DoL has further delayed a regulation that would raise prevailing H1B and other visa wages from May 14, 2021 to November 14, 2022.
Regulatory language
The reinstatement of the regulatory language by the DHS prior to that of the changes proposed by the Trump administration means that the Trump-era rule is no longer on the table.
However, it’s possible that the Biden administration may propose its own regulatory changes to the H1B visa program in the future.
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