The Department of Homeland Security (DHS) and Department of Labor (DOL) have released last-minute policy changes to the H-1B nonimmigrant program.

Key Points:

  • DHS posted a pre-publication version of a final rule, “Strengthening the H-1B Nonimmigrant Classification Program,” a narrower version of the Interim Final Rule (IFR) that was set aside in court in December.
  • The rule is scheduled to take effect 180 days after publication in the Federal Register.
  • According to the advance copy, the rule amends current regulations “to clarify how U.S. Citizenship and Immigration Services (USCIS) will determine whether there is an ‘employer-employee relationship’ between the petitioner and the beneficiary for the purposes of qualifying as a ‘United States employer.’” The rule does not finalize other provisions from the previous IFR version.
  • DOL issued two guidance documents regarding the obligations of common-law secondary employers of H-1B workers. The guidance is scheduled to take effect July 14.

Additional information: The incoming Biden administration has indicated that it intends to delay any regulations that have not taken effect by Wednesday when President-elect Joe Biden takes office. BAL is closely monitoring developments on H-1B regulations and the new administration’s posture toward midnight 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

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