On October 1, 2020, the Office of Information and Regulatory Affairs (“OIRA”), which is housed within the Office of Management and Budget (“OMB”), marked as “withdrawn” both the U.S. Citizenship and Immigration Services (“USCIS”) and U.S. Department of Labor (“DOL”) Interim Final Regulations (“IFR”). In an unusual move, OIRA has decided to not review these regulations but instead have passed them back to both agencies to publish immediately as an IFR. We expect these regulations to appear in the Federal Register as early as next week.
As background, on September 3, 2020, USCIS submitted an IRF titled, “Strengthening the H-1B Nonimmigrant Visa Classification Program.” Shortly thereafter, on September 16, 2020, the DOL submitted an IFR to OIRA entitled, “Restructuring of H-1B/H-1B1/E-3 and PERM Wage Levels.” USCIS and the DOL, rather than using the required administrative law Notice and Comment process by issuing a Notice of Proposed Rulemaking (“NPRM”) to give stakeholders the opportunity to comment on the impact of new regulations before implementing them, is seeking to release new regulations that would dramatically impact how the DOL levels the required wages employers must pay H-1B workers and the definition of “specialty occupation.” These two IFRs have been pending at OIRA since submission, and will dramatically change the very nature of the current H-1B program. The USCIS and DOL IFRs are expected to take effect immediately, without the opportunity for stakeholders to comment before the regulations were implemented, although USCIS may not implement them for 30 days. USCIS and DOL would then review comments from the public and could choose to make changes to the regulations in the future, but during that process which takes many months the regulations would be in full effect.
If you have questions how this may impact your immigration case, please contact SPS Immigration.