New H-1B Rule Submitted for OMB Review

On Friday, Sept. 4, 2020, the Department of Homeland Security (DHS) submitted a new H-1B rule to the Office of Management and Budget (OMB) to be reviewed. OMB review is the final step of the agency rulemaking process that must be completed prior to a new rule being published.

The actual text of the rule is not yet available, but based on a description of the rule previously included in the agency’s regulatory agenda, the new H-1B rule is expected to modify the definition of an H-1B specialty occupation, as well as the definition of employment and the employer-employee relationship for H-1B purposes. Additionally, it is anticipated the rule will also impose new H-1B wage requirements.

The new H-1B rule was submitted to OMB as an Interim Final Rule, which means that DHS believes there is good cause that the typically-required public comment period is not necessary and/or contrary to the public interest. It’s possible DHS will also argue that good cause exists to make the regulation effective immediately upon publication and without a 30-day delayed effective date. Previously, DHS had stated it would provide an opportunity for public comment before the new rule becomes effective.

Once published, this rule is expected to be challenged in court.

Ellis Porter will continue to closely monitor developments regarding this new H-1B rule and we will provided updated information once the text of the rule is published.