Interim final rule that tightened H-1B eligibility norms formally removed from legal code
The US Department of Homeland Security (DHS) has removed an interim final rule issued last October, under the Trump regime, from the Code of Federal Regulations,.
While this rule was to come into effect from December 7 last year, it was quashed by a US district court. Thus, while the rule never took effect, a notice issued by the DHS now formally rescinds the interim final rule and reinstates the long-standing H-1B eligibility criteria.
This interim final had laid out more restrictive eligibility norms for the H-1B visa program by creating a narrow definition of the employer-employee relationship and speciality occupations. It had placed new restrictions on the placement of H-1B workers at third-party worksites and required filing of customer contracts and worker’s itineraries.
The rule was expected to spike the rate of rejection of H-1B visa applications. Furthermore, it had also curtailed the tenure of the visa to one year in case of third-party placements – which would have made hiring of H-1B workers more challenging and expensive.
The Times of India had earlier reported on the court’s decision. Plaintiffs such as the Chamber of Commerce of the United States of America, The Bay Area Council, Stanford University, and several other educational institutions and trade associations had succeeded in their lawsuit.
The US district court had set aside this interim final rule. The reason being that it was fast-tracked and had bypassed the regular notice and comment rulemaking process, which was in violation of the Administrative Procedure Act. The US district courts had passed favourable orders in the case of two other lawsuits, which had challenged this interim final rule, as well.
While this rule was to come into effect from December 7 last year, it was quashed by a US district court. Thus, while the rule never took effect, a notice issued by the DHS now formally rescinds the interim final rule and reinstates the long-standing H-1B eligibility criteria.
This interim final had laid out more restrictive eligibility norms for the H-1B visa program by creating a narrow definition of the employer-employee relationship and speciality occupations. It had placed new restrictions on the placement of H-1B workers at third-party worksites and required filing of customer contracts and worker’s itineraries.
The rule was expected to spike the rate of rejection of H-1B visa applications. Furthermore, it had also curtailed the tenure of the visa to one year in case of third-party placements – which would have made hiring of H-1B workers more challenging and expensive.
The Times of India had earlier reported on the court’s decision. Plaintiffs such as the Chamber of Commerce of the United States of America, The Bay Area Council, Stanford University, and several other educational institutions and trade associations had succeeded in their lawsuit.
The US district court had set aside this interim final rule. The reason being that it was fast-tracked and had bypassed the regular notice and comment rulemaking process, which was in violation of the Administrative Procedure Act. The US district courts had passed favourable orders in the case of two other lawsuits, which had challenged this interim final rule, as well.
However, at present, US agencies are reviewing the wage rules for H-1B workers. As reported by TOI, employers sponsoring H-1B workers will be covered by the current wage rules and levels for almost the next two years. A transition phase to the new wage levels, which are yet to be finalised, will only begin on January 1, 2023, in a phased manner.
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