The US Department of Homeland Security on Sept. 3 sent a new H-1B visa regulation to the Office of Management and Budget for final review. The visas are used by highly skilled foreign workers such as physicians and technology specialists. Separately, a judge partially blocked President Trump’s June ban on foreign guest workers.

Proposed rule. The proposed rule would “revise the definition of specialty occupation to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program, and revise the definition of employment and employer-employee relationship to better protect US workers and wages,” according to a description of the rule. In addition, DHS will propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.

Three significant elements of the new regulation include:

  1. The regulation will be published as an “interim final rule,” which would allow it to go into effect immediately without public input but also makes the rule more vulnerable to legal challenge;
  2. The regulation will impose a new, restrictive definition of a “specialty occupation” for H-1B visa holders; and
  3. The rule will make it more difficult for H-1B professionals to conduct work at third-party customer locations.

The Office of Management and Budget has 90 days to review the regulation and once it clears the regulation, it is likely to take effect immediately, reported. However, it could take less than 90 days for the agency to review given the rule’s importance to the Trump administration.

The Trump administration has restricted H-1B visas more than any previous administration, but it has done so without issuing a new regulation, Forbes reported. And although this long-anticipated rule is expected to be published soon, it is almost certain to be challenged in court.

Research released by the National Foundation for American Policy, a nonpartisan research organization, also corroborates the fact that companies continue to be denied H-1B visas at much higher rates than in the years prior to new policies established by the Trump administration though all types of visas have been under scrutiny.

Blocked ban. In other visa news, a Washington federal judge on Friday partially blocked President Trump’s proclamation in June barring green card applicants, diversity visa lottery winners and other foreign guest workers from entering the US.

Trump previously said the measure was needed to protect American workers’ jobs during the economic downturn caused by the coronavirus pandemic. It extended a previous order barring entry to the US for green card applicants and diversity visa winners, and expanded it to include H-1B and H-4 visas, which are used by workers in specialty occupations and their families, as well as L visas for intracompany transfers and most J visas for work- and study-abroad programs. All visa categories targeted by the proclamation are barred from entry through the end of the year.

Bloomberg Law reported Judge Amit Mehta of the US District Court for the District of Columbia halted those efforts in so far as they would have prevented diversity visa lottery winners from obtaining their entry papers before the program’s Sept. 30 deadline.

However, The Associated Press reported Mehta denied requests to take similar action on other visa categories subject to bans, including many family members, H-1B visas for high-tech workers and H-2B visas for seasonal workers.

The case is Gomez et al v. Trump, D.D.C., No. 1:20-cv-01419, opinion 9/4/20.