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Key Points
  • DOL and DHS have announced changes to the H-1B nonimmigrant program
  • The final rule has not yet been published in the Federal Register
  • When published, the rule will take effect within 180 days of its publication
  • The final rule modifies USCIS’s definition of an employer-employee relationship and requires a common law test
  • The new proposed final rule requires employers to file multiple LCAs
  • The proposed final rule will not affect the FY 2022 cap season
Overview

The Department of Labor (DOL) and Department of Homeland Security (DHS) have issued changes to the H-1B nonimmigrant program. The rule takes effect 180 days after it is published in the Federal Register.

What are the Changes?

DHS has issued a pre-publication version of a final rule titled “Strengthening the H-1B Nonimmigrant Classification Program.” The final rule has not yet been published in the Federal Register. The agency’s final rule modifies current regulations used by U.S. Citizenship and Immigration Services (USCIS) to determine if a sufficient “employer-employee relationship” exists between the petitioner and beneficiary that allows the employer to be classified as a US employer.

What Should Employers and Applicants Know?

The regulation will not take effect until 180 days after it is published in the Federal Register. Even if the regulation is published before January 20, 2021, it will not impact FY 2022 cap season.

Looking Ahead

The final rule is subject to publication at the discretion of the incoming administration. The new administration will need to repeal the regulation if it is published before President Biden takes office.

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