H-1B rule under OMB review

The Department of Homeland Security (DHS) has sent a rule that would amend eligibility requirements for the H-1B nonimmigrant classification to the Office of Management and Budget (OMB) for review. The text of the rule is not yet available.

Key points:

• OMB review is the last step in the rulemaking process before publication. The text of the rule will be posted for public inspection at least a day before its official publication in the Federal Register.
• The rule is an Interim Final Rule, which means that the agency finds “for good cause” that a comment period would be “impracticable, unnecessary, or contrary to the public interest.” The government may also argue that good cause exists to make the regulation effective upon publication and without a 30-day delayed effective date.
• This rule has been on the regulatory agenda since 2017, and the government’s description states that DHS will revise the definitions of “specialty occupation,” “employment,” and an “employer-employee relationship,” as well as impose additional H-1B wage requirements.
• Litigation challenging the rule is expected.

BAL Analysis: The government previously stated that it would publish the regulation as a Notice of Proposed Rulemaking and provide the public an opportunity to comment on the policy changes before they become effective. The government is now expected to argue that compliance with the comment period obligations would be “impracticable, unnecessary, or contrary to the public interest.” The government may also argue that good cause exists to make the regulation effective upon publication and without the standard 30-day delayed effective date. The rule is expected to be challenged in court, though it is too early to predict the likelihood of success. BAL is closely monitoring the progress of the rule and will report additional information on its potential impact when the text is published.

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

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