DHS Proposes Stricter H-1B Visa Rules: What Employers and Applicants Need to Know
The Department of Homeland Security (DHS) is moving forward with new restrictions on H-1B visas, signaling major changes ahead for both employers and foreign workers. The regulation has already been submitted to the Office of Management and Budget (OMB) for review and is expected to be published soon.
Over the past decade, the H-1B program has faced unprecedented scrutiny and policy shifts. For instance, in fiscal year (FY) 2015, the denial rate for H-1B petitions was just 6%. By the second quarter of FY 2020, denials skyrocketed to 29%. If the upcoming rule takes effect, H-1B employers and applicants should prepare for an even more challenging path to approval.
Key Provisions of the Proposed H-1B Regulation
The proposal has drawn nationwide attention, not only for its restrictive measures but also because DHS may publish it as an interim final rule—a process that bypasses public comment and takes immediate effect. Below are the main elements of this regulation:
1. Interim Final Rule Implementation
Ordinarily, new immigration regulations undergo a public comment period where stakeholders can provide feedback before the rule becomes law. However, if issued as an interim final rule, these H-1B changes would go into effect immediately, without giving the public or industry stakeholders a voice.
USCIS has faced legal challenges in the past for using this expedited rulemaking process. For example, a STEM OPT regulation was struck down in court because it was rolled out as an interim final rule. Many immigration experts expect the new H-1B rule to face similar legal challenges, potentially delaying or overturning its enforcement.
2. Narrowing the Definition of a “Specialty Occupation”
One of the most significant changes proposed is the redefinition of what qualifies as a specialty occupation under the H-1B program. DHS has indicated that the new definition will focus on admitting only the “best and brightest” foreign professionals.
Additionally, the rule is expected to revise definitions surrounding employment and the employer–employee relationship, claiming that these updates are intended to better protect U.S. workers and wages.
Since 1991, H-1B adjudications have relied on relatively stable definitions. However, in recent years, USCIS has attempted to narrow its interpretation, often resulting in lawsuits after denials based on specialty occupation disputes. Several of these lawsuits have already been decided in favor of H-1B applicants, signaling that DHS’s proposed redefinition may once again face resistance in federal courts.
3. Restrictions on H-1B Workers at Third-Party Client Sites
Currently, H-1B regulations allow employees to work at third-party client sites, provided the employer maintains control over the worker’s employment, including the ability to hire, supervise, and terminate. This arrangement is particularly common in IT consulting firms that place skilled professionals with client companies.
The proposed rule seeks to impose new restrictions—or possibly eliminate this practice entirely. USCIS has already begun denying petitions where contractors are assigned to client sites, arguing that this setup fails to meet the employer–employee relationship standard. If this restriction is formalized, it could significantly impact IT consulting firms and businesses that rely on outsourcing for software development, cybersecurity, and other critical technology functions.
Key Provisions of the Proposed H-1B Regulation
While the exact impact of the regulation remains to be seen, there is no doubt that the rule will raise the bar for obtaining H-1B visas. Employers may face more denials, and some experts warn that companies could respond by sending high-value technology projects offshore.
However, given the likelihood of legal challenges—particularly due to the interim final rule process—employers and beneficiaries should not panic just yet. Instead, this is the time to stay informed and proactive.
At Green Card Link, its immigration attorneys closely monitor developments in immigration policy and are prepared to guide employers and professionals through the complexities of H-1B compliance. Whether you are preparing a new petition, facing a denial, or concerned about how these changes might affect your future, consulting with an immigration attorney at Green Card Link can help you navigate this evolving landscape.