According to an official press release dated October 6, 2020, the Department of Homeland Security announced an Interim Final Rule (IFR) that will strengthen the H-1B program for nonimmigrant workers to protect U.S. workers, restore the program's integrity, and provide better guarantees that "H-1B petitions will only be approved for qualified beneficiaries and petitioners".
According to the official announcement, the IFR will “take effect 60 days after its publication in the Federal Register”. The US Citizenship and Immigration Services (USCIS), part of the Department of Homeland Security (DHS), have decided to waive the regular notice and comment period.
Typically, the leadership guidelines announced by DHS or USCIS require that they seek the opinion of stakeholders and give them 60 days' notice. This is done to get feedback from stakeholders before making any major changes.
The press release states: "The economic impact of the pandemic is an" obvious and compelling fact "which warrants good reason for issuing this IFR."
According to the official announcement, the new rule will –
Narrow the definition of “specialty”
Encourage companies to make “real” offers for “real employees” by filling in the gaps
Improve DHS's ability to enforce compliance by inspecting construction sites and monitoring compliance before, during, and after an H-1B petition is approved
The US government issues 85,000 H-1B work permits each year.
65,000 of these go to people in special jobs. The remaining 20,000 H-1B work permits per year are reserved for foreign workers who have earned either a masters or advanced university degree in the United States.
Indians were the largest recipients of H-1B work permits in the past. According to official figures, USCIS had received around 2.5 lakh H-1B work visa applications as of April 1 this year. Over 60% of the total – that is 1.84 lakh – were requested by Indians.
The proposal to narrow the definition of “specialty” could reduce the total number of H-1B visas issued in a year.
Since the new guidelines were issued as a preliminary final rule, they will take effect without prior public comment and review, as is customary for such rules. Similar policy changes in the past that bypass the normal regulatory process have encountered legal challenges.
In some cases, such policy changes have been overturned by the US courts. In June 2020, the Supreme Court ruled that the DACA (Deferred Action for Childhood Arrivals) program for immigrants was wrongly terminated by the Trump administration.
In addition, with the upcoming US presidential election on November 3rd, the next Congress could vote to reverse the changes under the Congressional Review Act.
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