The Department of Homeland Security (DHS) issued a final rule in the Federal Register on January 19 that removes the “Strengthening the H1B Nonimmigrant Visa Classification” rule issued during the Trump Administration, effective immediately. (Strengthening the H-1B Nonimmigrant Visa Classification), effective immediately.
The Trump Administration issued the “Strengthening the H1B Nonimmigrant Visa Classification” through the Interim Final Rule (IFR) in early October of last year, amending the definition of “specialty occupation” that H1B work visa holders may engage in. The IFR promulgated the “Enhancement of H1B Nonimmigrant Visa Classification,” amending the definition of “specialty occupation” for H1B visa holders to require a direct relationship between the H1B applicant’s specialty and the position; redefining “worksite” and “third-party worksite” to increase the impact on H1B visa holders who rely on the H1B visa. “The temporary regulations were originally scheduled to be enacted last December.
The temporary regulations were scheduled to be implemented as of December 7 of last year, but a federal court judge in the Northern District of California struck down the temporary regulations on the grounds that the issuance process was unlawful; DHS issued final regulations on December 19, removing this struck down content from the relevant documents in the Code of Federal Regulations (CFR) and restoring the relevant regulatory text narrative to its original The original wording was restored.
DHS has removed the added definitions of “employment relationship,” “workplace,” and “third-party workplace,” and removed the definitions of “professional occupation” and “U.S. employer. “and “U.S. employer” back to their original definitions; more information can be found in the Federal Register at https://bit.ly/2RuCAaR.
The DHS has indicated that the earlier interim final regulations (promulgated by the Trump Administration) no longer have the force of law and that delaying the reinstatement of the text of the regulations would be contrary to the public interest and could cause confusion regarding the H1B classification.