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DHS’s Restrictive H-1B Rule Has Finally Been Stricken from the Federal Regulations

In November, we wrote about a new rule promulgated by the Department of Homeland Security (DHS) which would have drastically changed the H-1B nonimmigrant visa category by making the definition of “specialty occupation” considerably more restrictive and by making it much more difficult to employ an H-1B worker to physically work at a third party’s worksite. That rule, titled “Strengthening the H-1B Nonimmigrant Visa Classification Program” (85 FR 63918, 10/8/20) was an unnecessary overreach by DHS.

Thankfully, that rule was vacated by a federal district court in December. JSW Chamber of Commerce of the United States of America et al. v. United States Department of Homeland Security, et al., No. 4:20–cv–07331 (N.D. Cal. Dec. 1, 2020). However, while the court order meant that the rule had not effect, the language of the rule remained on the books in the Code of Federal Regulations (CFR).

We are now pleased to inform that DHS has finally acted to remove the language of that language from the CFR. On May 19, 2021, DHS issued a new final rule, titled “Strengthening the H-1B Nonimmigrant Visa Classification Program, Implementation of Vacatur” (86 FR 27027, 5/19/21). The October 2020 rule has been vacated, and now that vacatur has been implemented by removing the text of that rule from the CFR and restoring the CFR to appear as it did before October 2020.

Alexander Farquhar
Senior Associate Attorney – Dallas, Texas
David Swaim and Associates, P.C.