Strengthening the H-1B Nonimmigrant Visa Classification Program, Implementation of Vacatur, 27027-27028 [2021-10489]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 86, Number 95 (Wednesday, May 19, 2021)]
[Rules and Regulations]
[Pages 27027-27028]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10489]



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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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Federal Register / Vol. 86, No. 95 / Wednesday, May 19, 2021 / Rules 
and Regulations

[[Page 27027]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 214

RIN 1615-AC13
[CIS No. 2658-20 DHS Docket No. USCIS-2020-0018]


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.

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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.\1\ On December 1, 2020, the 
U.S. District Court for the Northern District of California vacated the 
IFR.\2\ 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.
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    \1\ 85 FR 63918 (Oct 8, 2020).
    \2\ See 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).
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    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

0
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.


0
2. Amend Sec.  214.2 by:
0
a. Revising paragraph (h)(2)(i)(B);
0
b. Removing paragraph (h)(4)(i)(B)(7);
0
c. In paragraph (h)(4)(ii):
0
i. Removing the definition of ``Employer-employee relationship'';
0
ii. Revising the definition of ``Specialty Occupation'';
0
iii. Removing the definition of ``Third-party worksite'';
0
iv. Revising the definition of ``United States employer''; and
0
v. Removing the definition of ``Worksite.''
0
d. Revising paragraph (h)(4)(iii)(A);
0
e. Removing paragraph (h)(4)(iv)(C);
0
f. Amending paragraph (h)(9) by:
0
i. Redesignating paragraph (h)(9)(i)(A) as paragraph (h)(9)(i), and 
removing paragraph (h)(9)(i)(B), and
0
ii. Revising paragraph (h)(9)(iii)(A)(1); and
0
g. Removing and reserving paragraph (h)(24)(ii).
    The revisions read as follows:


Sec.  214.2  Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (h) * * *
    (2) * * *
    (i) * * *
    (B) Service or training in more than one location. A petition that 
requires services to be performed or training to be received in more 
than one location must include an itinerary with the dates and 
locations of the services or training and must be filed with USCIS as 
provided in the form instructions. The address that the petitioner 
specifies as its location on the Form I-129 shall be where the 
petitioner is located for purposes of this paragraph.
    (4) * * *
    (i) * * *
    (B) * * *
    (ii) * * *

[[Page 27028]]

    Specialty occupation means an occupation which requires theoretical 
and practical application of a body of highly specialized knowledge in 
fields of human endeavor including, but not limited to, architecture, 
engineering, mathematics, physical sciences, social sciences, medicine 
and health, education, business specialties, accounting, law, theology, 
and the arts, and which requires the attainment of a bachelor's degree 
or higher in a specific specialty, or its equivalent, as a minimum for 
entry into the occupation in the United States.
* * * * *
    United States employer means a person, firm, corporation, 
contractor, or other association or organization in the United States 
which:
    (1) Engages a person to work within the United States;
    (2) Has an employer-employee relationship with respect to employees 
under this part; as indicated by the fact that it may hire, pay, fire, 
supervise, or otherwise control the work of any such employee; and
    (3) Has an Internal Revenue Service Tax identification number.
* * * * *
    (iii) * * *
    (A) Standards for specialty occupation position. To qualify as a 
specialty occupation, the position must meet one of the following 
criteria:
    (1) A baccalaureate or higher degree or its equivalent is normally 
the minimum requirement for entry into the particular position;
    (2) The degree requirement is common to the industry in parallel 
positions among similar organizations or, in the alternative, an 
employer may show that its particular position is so complex or unique 
that it can be performed only by an individual with a degree;
    (3) The employer normally requires a degree or its equivalent for 
the position; or
    (4) The nature of the specific duties are so specialized and 
complex that knowledge required to perform the duties is usually 
associated with the attainment of a baccalaureate or higher degree.
* * * * *
    (9) * * *
    (iii) * * *
    (A)(1) H-1B petition in a specialty occupation. An approved 
petition classified under section 101(a)(15)(H)(i)(b) of the Act for an 
alien in a specialty occupation shall be valid for a period of up to 
three years but may not exceed the validity period of the labor 
condition application.
* * * * *

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2021-10489 Filed 5-18-21; 8:45 am]
BILLING CODE 9111-97-P