New H1-B Rule Will Make It Harder for Employers to Hire Skilled Foreign Workers

UPDATE: The Department of Homeland Security rule was published October 8, 2020. It takes effect December 7, 2020. The Department of Labor rule was published October 8, 2020. It takes effect immediately.

Author: Michael Cardman, XpertHR Legal Editor

October 7, 2020

American businesses will soon face tightened standards for temporarily employing foreign workers in fields like biotechnology, chemistry, computing, engineering and more.

The US Department of Homeland Security (DHS) on October 6 announced a new rule that will amend the regulations for the H-1B nonimmigrant visa program, which allows employers to temporarily hire foreign workers in specialty occupations that require the application of a body of highly specialized knowledge and at least a bachelor's degree or its equivalent. This will directly affect foreign workers and businesses that seek to employ them.

Among other things, the rule will require employers to demonstrate that:

  • There is a direct relationship between the required degree field(s) and the duties of the position; and
  • That the bachelor's degree in a specific specialty or its equivalent is a minimum requirement for entry into the occupation in the United States.

The rule will take effect 60 days after it is published in the Federal Register. If it is published October 8, 2020, as scheduled, the effective date would be December 7, 2020.

The rule is classified as an interim final rule, which is issued when an agency finds it has good cause to issue a final rule without first publishing a proposed rule. This allows DHS to speed up the rulemaking process, but means the rule could be more vulnerable to challenges in court. DHS said it is forgoing the regular notice-and-comment period to "immediately ensure that employing H-1B workers will not worsen the economic crisis caused by COVID-19 and adversely affect wages and working conditions of similarly employed U.S. workers."

Meanwhile, the US Department of Labor (DOL) is expected to issue a new rule that will amend the prevailing wage methodology used in the H-1B, H-1B1, and E-3 Visa programs. In general, employers will be required to pay higher wages under this rule.