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US Department of Homeland Security further restricts skilled worker visas

Days after Trump order halting H-1B visas was blocked, DHS says it will make it harder for employers to hire candidates from outside the country

Days after a federal judge overturned US President Donald Trump's order halting H-1B visas for highly skilled tech workers, Trump's Department of Homeland Security said it will introduce rules to further limit US companies' ability to hire foreign talent.

The DHS did not release the text of what it's calling an interim final rule, but said it would "narrow the definition of 'specialty occupations'" eligible for an H-1B visa, "require companies to make 'real' offers to 'real employees,'" and further empower the DHS to conduct worksite inspections and monitor compliance "before, during, and after an H1-B petition is approved."

The rule will go into effect 60 days after its publication in the US Federal Register, with the DHS skipping the public notice and comment period "to immediately ensure that employing H-1B workers will not worsen the economic crisis caused by COVID-19 and adversely affect wages and working conditions of similarly employed U.S. workers."

Congress has already set a cap of 65,000 H-1B visas issued per fiscal year.

Last week, a US District Court Judge sided with a number of business groups trying to overturn Trump's executive order from June. While the judge noted the president has considerable power to conduct foreign affairs through executive orders, the stated reason for the order -- to bolster a US economy hurt by the pandemic -- was "a purely domestic economic issue."

"There must be some measure of constraint on presidential authority in the domestic sphere in order not to render the executive an entirely monarchical power in the immigration context," the judge ruled.

The Entertainment Software Association has lobbied politicians on H-1B visas for years to improve its member companies' access to foreign talent. The ESA did not immediately return our request for comment on the new DHS rules.

Last month, a judge ruled that DHS Acting Secretary Chad Wolf is likely serving unlawfully because after DHS Secretary Kirstjen Nielsen's resignation in April of 2019, the proper process of succession was not followed and as a result, subsequent amendments to the rules designed to have Wolf to take over last November were not valid.

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