The Trump administration is expected to expedite the implementation of new H-1B regulations as an Interim Final Rule (IFR), rather than as a Notice of Proposed Rulemaking (NPRM). USCIS and DOL Interim Final Rules are expected to substantially modify prevailing wage requirements and limit availability of the H-1B visas to the most highly paid professionals.

Expected Provisions

While the regulations will not be available until they are published in the Federal Register, based on the regulatory agenda and other clues, they are expected to include the following:

  • Revision of the definition of an H-1B specialty occupation to “increase focus on obtaining the best and brightest foreign nationals.”
  • Changes to the definitions of H-1B employment and the employer-employee relationship, with a focus on restricting offsite placement of H-1B workers. In May 2020, USCIS entered into a settlement agreement to resolve legal issues raised in the ITServe Alliance litigation. The settlement agreement resulted in the Rescission of the 2018 memorandum “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” and the 2010 memorandum, “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements”. It is expected that, as part of its in response to the settlement agreement and the rescissions of these memoranda, the Interim Final Rule will revise the regulatory definition of “United States Employer” and the interpretation of “employer-employee relationship” so as to exclude or limit the availability of the H-1B visa program where there is third-party placement of H-1B workers.
  • Possible requirement that H-1B employers and their end clients jointly obtain LCAs where H-1B workers will work at client sites. The regulation may include a revision to the Labor Condition Application (LCA) requirement so that, when the H-1B worker is assigned to a third-party work site, the end-client would need to join in or be a signatory to the LCA. A joint LCA requirement may create de facto joint employer liability for LCA obligations on wages and working conditions.
  • Additional H-1B wage requirements “to ensure employers pay appropriate wages to H-1B visa holders” as well as a restructuring of the H-1B, H-1B1, E-3 and PERM prevailing wage levels.