What’s Happening
The Department of Homeland Security (DHS) has submitted a proposed regulation titled Reforming the H-1B Nonimmigrant Visa Classification Program to the Office of Management and Budget (OMB) for review. The proposal could reshape several areas of H-1B eligibility and compliance, but it does not change current law or filing requirements at this stage.
The full proposal has not yet been released. Until DHS publishes the proposed rule in the Federal Register, its precise scope, definitions, and operational impact will remain unknown.
What You Need to Know
According to the government’s regulatory agenda, (RIN: 1615-AD00), DHS is considering changes intended to increase H-1B program oversight and protect U.S. workers’ wages and working conditions. The agency’s public description identifies three principal areas of concern:
Cap-exempt eligibility. DHS may revise the standards governing which employers, institutions, or positions qualify for exemption from the annual H-1B cap.
Employer compliance. The proposal may subject employers with prior H-1B program violations to heightened review or additional requirements.
Third-party placements. DHS may increase scrutiny of arrangements in which H-1B employees perform services at client or other third-party worksites.
DHS has also indicated that the rule may contain additional provisions. No regulatory text is currently available, and the agency’s brief description does not establish how any new standards would apply in practice.
What This Means for Employers
There is no immediate action required, and the proposal’s submission for OMB review does not change existing H-1B requirements or adjudication standards. The proposal nevertheless warrants close attention, particularly for cap-exempt organizations, employers that place H-1B workers at third-party locations, and organizations with prior H-1B compliance violations. Depending on the eventual text, the proposed changes could affect petition strategy, supporting evidence, worksite documentation, and compliance planning.
What To Expect Next
OMB review is an internal step in the federal rulemaking process. Once that review is complete, DHS will publish a Notice of Proposed Rulemaking in the Federal Register. Publication generally open a public comment period of 30 or 60 days. DHS would then need to consider the comments received before issuing any final rule and establishing an implementation date.
The proposal will therefore not take effect upon publication. Its substance and timing may also change during OMB review and the subsequent rulemaking process.
D&S Will Continue to Monitor
D&S will review the proposed rule as soon as it is released and provide further guidance regarding its potential impact on employers and H-1B workers. Employers with potentially affected populations may wish to begin identifying cap-exempt filings and third-party placement arrangements so they can efficiently assess any future changes once the regulatory text becomes available.
This alert is for general informational purposes only and does not constitute legal advice. Please consult D&S immigration counsel regarding your specific circumstances. D&S Senior Associate, Paulina Baginska, assisted with the preparation of this alert.