DHS Rule to Toughen H-1B Program Criteria Is Now Under Federal Review on a Fast Track
September 4, 2020

At a Glance
- The Office of Management and Budget (OMB) is reviewing a long-planned DHS regulation to tighten the definition of an H-1B specialty occupation and the H-1B employer-employee relationship – the next step in the process of implementing the rule.
- DHS plans to issue the regulation as an interim final rule having immediate or near-immediate impact, with no opportunity for public feedback before the rule takes effect.
The issue
The Department of Homeland Security has submitted to the Office of Management and Budget (OMB) a long-planned regulation to toughen H-1B eligibility criteria and impose new obligations on H-1B employers. OMB review is the next step toward implementing the regulation, which President Trump made a priority in his recent proclamation restricting the entry of H-1B, L-1 and certain J-1 nonimmigrants.
DHS plans to issue the regulation as an interim final rule with immediate or near-immediate impact. This means that employers and other members of the public would not have an opportunity to provide public feedback before the rule takes effect.
Though the contents of the regulation will remain confidential until released for publication, the rule is expected to revise the definition of an H-1B specialty occupation to “increase focus on obtaining the best and brightest foreign nationals.” It is also expected to change the definitions of H-1B employment and the employer-employee relationship, with a likely focus on restriction of offsite placement of H-1B workers. This could lead to a requirement that H-1B employers and end clients jointly obtain labor condition applications (LCAs) for H-1B workers at client sites. A joint LCA requirement could create de facto joint employer liability for compliance with obligations concerning H-1B wages and working conditions. The regulation could also address other aspects of H-1B wage requirements.
What’s next for the regulation
OMB has up to 90 days to review the regulation, but could take less time given the rule’s importance to the Trump Administration. Once OMB clears the regulation, it will be published in the Federal Register and is expected to take effect immediately or shortly after publication. The regulation is expected to be challenged in court.
Fragomen is closely monitoring the rule and will provide updates as it advances through the federal review process.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.
Explore more at Fragomen

Media mentions
Partner Rick Lamanna discusses the potential option of decentralizing work permit issuance in Canada, emphasizing the need for clear coordination between the provincial and federal governments.

Video
Fragomen FC hosts are joined by Manager Alexander Hood to examine how immigration rules are reshaping global football, from EPL transfers to the rise of international transfers into the Women’s Super League.

Media mentions
Partner Aaron Blumberg noted that enhanced screening measures, including social media vetting, may be contributing to delays in US student visa processing.

Media mentions
Associate Ilaria Iovieno outlines how recent UK immigration reforms will impact construction employers and their ability to sponsor overseas talent.

Media mentions

Media mentions
Senior Associate Tayyaba Karim and Associates Aisha Shahid and Yinny Tan outline how UK immigration changes affect tech talent access and business alignment.

Media mentions
Partner Parisa Karaahmet is quoted on a new country-specific, $250 "visa integrity fee" introduced by the current US administration as part of a domestic policy bill.

Media mentions
Paralegal Sean Pearce discusses the UK government's immigration White Paper in the context of its Industrial Strategy, noting the importance of overseas talent in meeting infrastructure and housing goals.

Video
In this Mobility Minute, Partner Christian Dallman shares an update on US tariffs as the August 1 deadline for trade negotiations approaches.

Media mentions
Partner Haider Hussain discussed how Saudi Arabia’s new skill-based work permit system is reshaping employer compliance and recruitment strategies.

Podcast
Director Caroline Kanzara-Obinwa and Manager Tarissa Wareley are joined by Bloomfield Law Practice's Kunle Obebe and Peace Lotechukwu to discuss Nigeria's 2025 visa policy reforms.

Media mentions
Associate Yinny Tan outlines how proposed UK immigration changes may affect workforce planning and talent access in the wind industry.

Media mentions
Partner Rick Lamanna discusses the potential option of decentralizing work permit issuance in Canada, emphasizing the need for clear coordination between the provincial and federal governments.

Video
Fragomen FC hosts are joined by Manager Alexander Hood to examine how immigration rules are reshaping global football, from EPL transfers to the rise of international transfers into the Women’s Super League.

Media mentions
Partner Aaron Blumberg noted that enhanced screening measures, including social media vetting, may be contributing to delays in US student visa processing.

Media mentions
Associate Ilaria Iovieno outlines how recent UK immigration reforms will impact construction employers and their ability to sponsor overseas talent.

Media mentions

Media mentions
Senior Associate Tayyaba Karim and Associates Aisha Shahid and Yinny Tan outline how UK immigration changes affect tech talent access and business alignment.

Media mentions
Partner Parisa Karaahmet is quoted on a new country-specific, $250 "visa integrity fee" introduced by the current US administration as part of a domestic policy bill.

Media mentions
Paralegal Sean Pearce discusses the UK government's immigration White Paper in the context of its Industrial Strategy, noting the importance of overseas talent in meeting infrastructure and housing goals.

Video
In this Mobility Minute, Partner Christian Dallman shares an update on US tariffs as the August 1 deadline for trade negotiations approaches.

Media mentions
Partner Haider Hussain discussed how Saudi Arabia’s new skill-based work permit system is reshaping employer compliance and recruitment strategies.

Podcast
Director Caroline Kanzara-Obinwa and Manager Tarissa Wareley are joined by Bloomfield Law Practice's Kunle Obebe and Peace Lotechukwu to discuss Nigeria's 2025 visa policy reforms.

Media mentions
Associate Yinny Tan outlines how proposed UK immigration changes may affect workforce planning and talent access in the wind industry.