The “Strengthening the H-1B Nonimmigrant Visa Classification Program” rule has been submitted to the Office of Information and Regulatory Affairs (OIRA) for review and could be published by the end of the year – or earlier. Although the text of the rule is still not public, it is generally believed that the proposal will formalize some of the policies that USCIS has already been using over the past years to issue Requests for Evidence and to deny H-1B petitions, including:

• Adjust the definition of “specialty occupation” to focus even more on the relationship between the degree requirements, the position description, and the degree held by the beneficiary;

• Establish new wage and LCA requirements limiting eligibility to those who are considered to be “the best and the brightest;” and

• Reinstitute some of the requirements for employees at third-party worksites that USCIS agreed to withdraw earlier this year in a litigation settlement, including onerous contract and itinerary documentation requirements and a narrow interpretation of what constitutes a “bona fide employer-employee relationship.”

This rule is likely to create additional uncertainty for foreign nationals and employers who rely on H-1B visas, particularly in the technology, biotech, finance and healthcare industries.

Under the Administrative Procedures Act (APA), once OIRA review is successfully completed, the new rule can be published in the Federal Register. This rule is classified as an Interim Final Rule, meaning the rule will go into effect immediately without a pre-publication notice and comment period. By formally establishing these policies through the rulemaking process, DHS will make it harder for individual employers to challenge denials in federal court. On the other hand, because the rule is being submitted as an Interim Final Rule, that in itself is likely to invite a court challenge.

Although the specific regulations have not been disclosed, employers who currently use H-1B workers have been significantly impacted by the policies the Administration may be now formalizing. Nonetheless, the new rule is currently designated as not economically significant.