Strengthening the H-1B Nonimmigrant Visa Classification Program, Implementation of Vacatur

AGENCY:

U.S. Citizenship and Immigration Services, Department of Homeland Security.

ACTION:

Final rule.

SUMMARY:

This final rule removes from the Code of Federal Regulations an interim final rule (IFR) issued in October 2020, which has since been vacated by a federal district court.

DATES:

This rule is effective May 19, 2021.

FOR FURTHER INFORMATION CONTACT:

Charles L. Nimick, Chief, Business and Foreign Workers Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 5900 Capital Gateway Drive, Mail Stop 2090, Camp Springs, MD 20588-0009. Telephone Number (240) 721-3000 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Background and Basis for Removal of Regulations

On October 8, 2020, the Department of Homeland Security (DHS) issued an Interim Final Rule (IFR) titled, Strengthening the H-1B Nonimmigrant Visa Classification Program. On December 1, 2020, the U.S. District Court for the Northern District of California vacated the IFR. The Department announced on December 4, 2020, that it would fully comply with the court's decision vacating the October 2020 IFR; however, changes to the regulatory text as set forth in the IFR are still reflected in the Code of Federal Regulations (CFR) at 8 CFR 214.2.

This rule removes from the CFR the regulatory text that the Department promulgated in the October 2020 IFR and restores the regulatory text to appear as it did before the October 2020 IFR, and consistent with the rules that remain valid subsequent to the court's vacatur.

DHS is not required to provide notice and comment or delay the effective date of this rule because this rule simply implements the court's vacatur of the IFR and restores the regulatory text so that it correctly reflects the regulatory text that predates the vacatur and remains valid. The changes made by the IFR do not have any legal effect. Moreover, good cause exists here for bypassing any otherwise applicable requirements of notice and comment and a delayed effective date. Notice and comment and a delayed effective date are unnecessary for the implementation of the court's order vacating the rule and would be impracticable and contrary to the public interest in light of the agency's immediate need to implement the final judgment. See 5 U.S.C. 553(b)(B), (d). DHS believes that delaying the ministerial act of restoring the regulatory text in the Federal Register is contrary to the public interest because it could lead to confusion, particularly among the regulated public, as to the eligibility requirements for the H-1B classification. DHS has concluded that each of those three reasons—that notice and comment and a delayed effective date are unnecessary, impracticable, and contrary to the public interest—independently provides good cause to bypass any otherwise applicable requirements of notice and comment and a delayed effective date.

List of Subjects in 8 CFR Part 214

• Administrative practice and procedure
• Aliens
• Cultural exchange program
• Employment
• Foreign officials
• Health professions
• Reporting and recordkeeping requirements
• Students

Accordingly, for the reasons set forth in the preamble, DHS amends chapter I of title 8 of the Code of Federal Regulations as follows:

PART 214—NONIMMIGRANT CLASSES

1. The authority citation for part 214 continues to read as follows:

Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-386, 114 Stat. 1477-1480; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and 1931 note, respectively; 8 CFR part 2.

2. Amend § 214.2 by:

a. Revising paragraph (h)(2)(i)(B);

b. Removing paragraph (h)(4)(i)(B)( 7);

c. In paragraph (h)(4)(ii):

i. Removing the definition of “Employer-employee relationship”;

ii. Revising the definition of “Specialty Occupation”;

iii. Removing the definition of “Third-party worksite”;

iv. Revising the definition of “United States employer”; and

v. Removing the definition of “Worksite.”

d. Revising paragraph (h)(4)(iii)(A);

e. Removing paragraph (h)(4)(iv)(C);

f. Amending paragraph (h)(9) by:

i. Redesignating paragraph (h)(9)(i)(A) as paragraph (h)(9)(i), and removing paragraph (h)(9)(i)(B), and

ii. Revising paragraph (h)(9)(iii)(A)(1); and

g. Removing and reserving paragraph (h)(24)(ii).

The revisions read as follows: