Final Rule Implementing Vacatur of Interim Final Rule Which Revised Definition of Specialty Occupation

In good news for high-skilled foreign workers who would like to apply for H-1B visas in the future, a final rule was published on May 19, 2021, removing the interim final rule “Strengthening the H-1B Nonimmigrant Visa Classification Program” after it had been vacated by a federal district court.  

This interim final rule was issued under the Trump administration without a notice and comment period and would have had an incredibly negative impact on the H-1B process. Specifically, this rule would have overhauled the H-1B visa program by requiring employers to pay H-1B workers much higher wages, tightening the restrictions on the types of degrees that could qualify an applicant, and shortening the length of the visa for certain types of workers. According to a senior official in the Department of Homeland Security (“DHS”) at the time, this change would have meant the rejection of about one-third of H-1B applications. 

However, on December 1, 2020, in Chamber of Commerce, et al., v. DHS et al., the US District Court for the Northern District of California court found that the defendants had failed to show that there was good cause to avoid the Administrative Procedure’s Act’s notice and comment requirements. Consequently, the court set aside the DHS interim final rule “Strengthening the H-1B Nonimmigrant Visa Classification Program.” Based on this ruling, the Biden administration recently published a final rule restoring the regulatory text relating to the definition of a H-1B visas to appear as it did before the publication of the interim final rule.