In likely its last “midnight rule,” the Department of Homeland Security (DHS) plans to publish a more limited version of its Strengthening the H-1B Nonimmigrant Visa Classification Final Rule (the “Final Rule”). With the twin goals of aligning the H-1B regulations with the Immigration and Nationality Act and improving the integrity of the H-1B program, the Final Rule targets employers who assign H-1B workers to third-party worksites, requiring those employers to establish a valid “employer-employee” relationship.
Continue Reading Trump Administration Poised to Publish a More Limited H-1B Rule Before Inauguration Day

As reported in our prior alert, the Department of Labor (DOL) has issued its final rule Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.  Published today in the Federal Register, the Final Rule is effective March 15, 2021.  The rule increases wages employers are required to pay H-1B workers by the percentiles we previously reported for the four wage levels utilized by the DOL—35th percentile for Level 1, followed by 53rd, 72nd and 90th percentiles. 
Continue Reading Trump Administration Publishes H-1B DOL Wage Rule

On December 31, 2020, the Trump Administration issued Presidential Proclamation on Suspension of Entry of Immigrants and Nonimmigrants Who Continue to Present a Risk to the United States Labor Market, continuing restrictions on certain work visa and green card issuance through the end of March 2021.  Citing improved but still persistent unemployment figures caused by COVID-19, the new Proclamation extended two prior executive actions that have limited employers’ ability to sponsor foreign workers for residency and work in the United States:

  • Presidential Proclamation 10014, which suspended the issuance of new immigrant visas to applicants who were outside the United States as of April 24, 2020, and
  • Presidential Proclamation 10052, which, as reported here, suspended new H-1B, L-1, H-2B, and certain J-1 visa issuance for individuals who were outside the United States as of June 23, 2020; were not in possession of a nonimmigrant visa on that date; and have no other authorization to travel to the United States, such as a transportation letter, an appropriate boarding foil, or an advance parole authorization. The Department of State (DOS) has confirmed that the ban does not prohibit visa applications and travel into the United States by H-1B and L-1 nonimmigrants who are resuming “ongoing employment in the United States in the same position with the same employer and visa classification.”


Continue Reading Trump Administration Extends Bans on Issuing Certain Work Visas and Green Cards Until March 31, 2021

This afternoon, the US District Court for the Northern District of California set aside two rules issued by the Trump administration pertaining to employer sponsorship of H-1B workers, both of which bypassed notice-and-comment rulemaking as required by the Administrative Procedures Act (“APA”):

  • The Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens

A California federal court granted class certification to businesses accusing the US government of unlawfully rejecting market research analysts’ H-1B visa petitions, certifying a nationwide class of employers who say US Citizenship and Immigration Services systematically misreads the US Department of Labor’s definition of a market research analyst to mean that the position doesn’t qualify as a specialty occupation. Due to the pendency of a newly announced USCIS  interim final rule narrowing the definition of a “specialty occupation” when evaluating H-1B visa applications to those with narrowed degree requirements, U.S. Magistrate Judge Susan van Keulen limited to companies that file visa petitions between January 1, 2019, and December 6, 2020, as the rule is slated to take effect December 7, 2020.  If the interim final rule, which is the subject of several lawsuits, is enjoined, plaintiffs have indicated they intend to request expansion of the class to encompass petitions filed as of December 7.

The class action represents the latest challenge to attempts by USCIS to narrow the definition of specialty occupation to exclude blanket occupations, where, as in the case of market research analysts, the government indicates that a degree in a narrow subspecialty is not “normally” required by employers. 
Continue Reading Newly-Certified Class Represents Latest Challenge to USCIS’s Blanket Repudiation of Occupation As H-1B Specialty

Executive Summary

The Trump Administration has introduced long-anticipated changes to the H-1B visa program for highly-skilled foreign workers, aimed at tightening eligibility for STEM talent working at major US employers, including by imposing a rigid requirement that any job offered to an H-1B worker require a single specific degree in a subspecialty, and that each

The White House has announced issuance of two new rules, both of which will take effect immediately upon publication in the Federal Register:

  1.  The Department of Homeland Security’s H-1B rule,  “Strengthening the H-1B Non-immigrant Visa Classification Program,” which has been on the DHS regulatory agenda for many years, including its first appearance in Fall 2017

On Friday, August 14, 2020, US Citizenship & Immigration Services completed a second round of lottery selection for FY 2021 H-1B cap-subject petitions. The new selection round was due to the fact that the number of timely filings for H-1B petitions corresponding to  registrations selected under the first round were insufficient to fill the annual quota of 85,000, which includes 65,000 H-1B petitions, and an additional 20,000 petitions allotted to beneficiaries who possess a US advanced degree.  Employers whose H-1B petitions were selected in the first round of the lottery had between April 1 and June 30, 2020, to file petitions.  As a result of the shortage in filings submitted by June 30, USCIS is allocating the unused numbers randomly among the non-selected cases under the first round.
Continue Reading USCIS Issues Second Round H-1B Cap Lottery Selection With A November 16, 2020 Deadline to File

On August 3, 2020, President Trump issued an Executive Order (“EO” or the “Order”) directing the heads of all agencies that enter into contracts to review the impact of contractors and their subcontractors employing H-1B visa holders on the wages and employment opportunities of US workers. Specifically, the EO directs all federal agencies to review