The US Department of Homeland Security (DHS) has submitted to the Office of Management and Budget (OMB) for its review, a draft regulation to introduce stricter norms for the H-1B program.

A revision of the H-1B norms, so as to attract the ‘best and brightest’ has been on the agenda of US President Donald Trump for the past several years. It is largely expected that the new regulations will tighten the definition of an H-1B speciality occupation and also the employer-employee relationship.

President Trump had also made H-1B program revisions a priority, during his recent proclamation on June 22, which had restricted the entry of H-1B and other classes of non-immigrant workers.

Review by the OMB is one of the final stages, prior to roll out of the regulation for public comments followed by vetting and adoption. However, experts feel that the step of inviting public comments may be skipped, as it is possible that the new regulation will be introduced as an ‘interim final rule’. The OMB office serves the US President in overseeing implementation of his vision, across the executive branch.

Mitchell Wexler, partner, Fragomen, a global immigration law firm told TOI, “The regulation 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-customers jointly obtain labour condition applications (LCAs) for H-1B workers at client sites. A joint LCA requirement could create de facto joint employer liability, for compliance obligations relating to wages and working conditions,” added Wexler.

TOI had highlighted this proposed course of action, in its analysis of the Spring agenda of the US government. Then, the target date for the proposed rule was pegged at end-December. Elections could have prompted the fast track review, say immigration experts.
H-1B visas are a very popular work visa, especially for Indians in the technology sector. According to official data, Indians had bagged 2.78 lakh or nearly 72% of the total H-1B visas allotted during fiscal ended September 30, 2019. The largest sponsoring employers include leading MNCs and also Indian headquartered tech companies.