As per an official Press Release on October 6, 2020, the Department of Homeland Security has announced an interim final rule [IFR] that strengthens the H-1B nonimmigrant program for protecting US workers, “restores integrity” to the program, and better guarantees that “H-1B petitions are approved only for qualified beneficiaries and petitioners”.
As per the official announcement, the IFR is to be “effective 60 days after its publication in the Federal register”. United States Citizenship and Immigration Services [USCIS], a part of Department of Homeland Security [DHS], has decided to forgo the regular notice and comment period.
Usually, executive policies that are announced by the DHS or USCIS require them to take the opinion of stakeholders, giving them a notice period of 60 days. This is done for getting feedback from the stakeholders before any sweeping changes are introduced.
As per the Press release, “the pandemic’s economic impact is an ‘obvious and compelling fact’ that justifies good cause to issue this IFR”.
According to the official announcement, the new rule will –
Narrow the definition of “speciality occupation”
Require companies to make ‘real’ offers to ‘real employees’ by closing loopholes
Enhance the ability of the DHS to enforce compliance through inspection of worksites and the monitoring of compliance before, during as well as after an H-1B petition is approved
85,000 H-1B work permits are issued each year by the US administration.
Of these, 65,000 go to individuals in speciality occupations. The remaining 20,000 H-1B work permits in a year are reserved for foreign workers that have earned either a masters or higher university degree in the US.
Indians have been the biggest recipients of H-1B work permits in the past. As per the official data, as on April 1 this year, USCIS had received around 2.5 lakh H-1B work visa applications. Over 60% of the total – that is, 1.84 lakh – had been applied for by Indians.
With the proposal for narrowing down the definition of “speciality occupation”, the total number of H-1B visas issued in a year might be brought down.
As the new policies have been issued as interim final rule, they will be taking effect without a prior public-comment and review process customary for such rules. Similar policy changes in the past, bypassing the customary regulatory process, have met with legal challenges.
In some cases, such policy changes have been overturned by the US courts. In June 2020, the Supreme Court ruled that the Deferred Action for Childhood Arrivals [DACA] program for immigrants had been improperly ended by the Trump administration.
Moreover, with the upcoming US presidential elections on November 3, the next Congress could vote to have the changes reversed under the Congressional Review Act.
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