H-1B Program Changes to be Implemented Soon

H-1B Program Changes to be Implemented Soon

The Department of Homeland Security (DHS) has sent a new H-1B regulation to the Office of Management and Budget for their final review.  This regulation is expected to toughen eligibility criteria for foreign nationals and impose new obligations on employers.  The regulation will be published as an “interim final rule” and will take effect immediately or shortly after publication, without public input.  It’s almost certain that the rule will be challenged in court.

The rule is expected to revise the definition of an H-1B specialty occupation to “increase focus on obtaining the best and brightest foreign nationals.” The proposed rule will also revise the definitions of ‘employer-employee relationship’ with the likely intent to restrict or make it harder for U.S. employers to post their H-1B employees at third party worksites.  There is a possibly that this could lead to a requirement for employers and end clients to jointly apply for a labor condition application (LCA) with regard to H-1B work at client worksite.  Such an LCA jointly obtained by the employer and end client will impose joint employer liability for compliance and other obligations for H-1B employment.

The specifics of the rule are confidential, and the impact of the proposed changes cannot be determined with any certainty at this time but reportedly, the changes will make things difficult for both end clients and employers.

LawQuest is closely monitoring the progress of the regulation and will provide updates when available.

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