United States: DHS to Propose H-1B Program Changes

The Department of Homeland Security (DHS) has begun the process to propose a new regulation that would revise various aspects of the H-1B nonimmigrant program. The proposed regulation is currently being reviewed by the Office of Management and Budget (OMB); once it clears OMB review, it will be published in the Federal Register for a 30- or 60-day public comment period.

The contents of the proposal will remain confidential until released for publication in the Federal Register. However, DHS says that the rule would revise eligibility for cap exemption, provide greater scrutiny of employers deemed to have violated program rules, and increase oversight of the placement of H-1B employees at third-party worksites, among other changes. Plans for the proposed rule were included in the agency’s regulatory agenda, released in July.

The H-1B classification has been the focus of significant regulatory action. OMB is currently reviewing a DHS proposal that would require an additional fee of $103,265 for all H-1B cap-subject petitions, including both change of status and consular notification petitions. In early August, DHS announced the expansion of a fee that petitioners with a high percentage of H-1B and L-1 employees must pay. In addition, the Department of Labor has proposed increasing minimum required wages for the H-1B classification and other wage-regulated immigration programs.