Trump Administration pushes to toughen H-1B Program Is Now Under Federal Review on a Fast Track

The Trump administration has been saying since 2017 that it would change the definition of what qualifies as a “specialty occupation” for the H-1B, a visa intended for skilled foreign workers that is often used as a pathway to a green card.

Now, the U.S. Department of Homeland Security has taken a step forward, sending its proposed new rule to the White House’s Office of Management and Budget(OMB). The text is not yet available so details of how the administration is redefining specialty occupations are not clear.

DHSRULE

OMB review is the next step toward implementing the regulation, which President Trump made a priority in his recent proclamation restricting the entry of H-1B, L-1 and certain J-1 nonimmigrants. The Office of Management and Budget (OMB) is reviewing a long-planned DHS regulation to tighten the definition of an H-1B specialty occupation and the H-1B employer-employee relationship – the next step in the process of implementing the rule.

The expected changes will revise the definition

  • To increase focus on obtaining the best and the brightest foreign nationals via the H-1B program
  • To revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages.
  • Add requirements designed to make sure employers pay “appropriate wages” to H-1B workers

DHS plans to issue the regulation as an interim final rule having immediate or near-immediate impact, with no opportunity for public feedback before the rule takes effect.

This item also appeared on their spring 2020 agenda and now has been expedited.

OMB has up to 90 days to review the regulation, but could take less time given the rule’s importance to the Trump Administration. Once OMB clears the regulation, it will be published in the Federal Register and is expected to take effect immediately or shortly after publication. The regulation is expected to be challenged in court.

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