Midnight H-1B strengthening rule likely to be withdrawn following Biden directive

A limited “H-1B strengthening” final rule that the Department of Homeland Security posted to its website last Friday is expected to be withdrawn in compliance with a memorandum issued by the White House Chief of Staff yesterday.

Key Points:

• The web posting of the rule has been removed. The rule would have clarified how U.S. Citizenship and Immigration Services determines whether there is an “employer-employee” relationship between the H-1B petitioner and the beneficiary for the purposes of qualifying as a U.S. employer.
• The regulation was not published in the Federal Register before President Joe Biden took office. The White House memo directs agencies to withdraw regulations that were not published in the Federal Register as of Jan. 20 and to consider delaying regulations that have not yet taken effect by postponing their effective dates by 60 days.
• The Labor Department also posted guidance last week that would have required certain companies hosting third-party H-1B workers to file Labor Condition Applications, but has withdrawn the guidance.

Background: The rule had a more limited scope than the H-1B Strengthening Interim Final Rule that a court set aside in December.

BAL Analysis: BAL is closely following the Biden administration’s approach to multiple H-1B regulations and will update clients as information becomes available.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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