DHS is going back after H-1B third-party placements, and this time it is trying to do it through a regulation rather than a policy memo that a court can strike down in an afternoon.
A proposed rule titled Reforming the H-1B Nonimmigrant Visa Classification Program, RIN 1615-AD00, arrived at the Office of Information and Regulatory Affairs on August 24, 2026. Its abstract commits DHS to three things: revising eligibility for cap exemptions, providing greater scrutiny for employers that have violated program requirements, and increasing oversight over third party placements. DHS says the changes are intended to improve the integrity of the H-1B program and better protect U.S. workers wages and working conditions. The rule would amend 8 CFR 214.2(h) and is classified as Economically Significant.
The history here explains the choice of vehicle. In 2018, USCIS issued its Contracts and Itineraries memorandum, which required staffing companies placing H-1B workers at client sites to document every worksite for the full three-year validity period and to produce end-client contracts and day-to-day assignment details. The memo was challenged in ITServe Alliance, Inc. v. Cissna, where plaintiffs argued that the agency was applying a narrow employer-employee relationship test with no basis in statute or regulation. USCIS settled, and on June 17, 2020 it issued a policy memorandum rescinding the 2018 guidance and a related earlier memo, dropping the itinerary requirement, the end-client contract requirement, and the detailed assignment descriptions.
A parallel attempt to achieve the same result by regulation also failed. The October 2020 interim final rule, Strengthening the H-1B Nonimmigrant Visa Classification Program, was vacated by a federal court, and DHS published its implementation of that vacatur in May 2021.
Notice-and-comment rulemaking is the response to both defeats. A memo can be attacked as guidance issued without process; a rule that goes through OMB review, publication, a public comment period, and a reasoned final rule is considerably harder to unwind on procedural grounds, though it remains vulnerable on the merits.
For H-1B workers at consulting and staffing firms, nothing changes yet. The rule is still under White House review, its text is not public, and DHS must publish a proposed rule and take comments before anything binds. But the direction is unambiguous, and workers whose status depends on a third-party placement model should be aware that the documentary burden on their employers is likely to increase, and that employment-based green card routes that do not rest on an employer relationship, such as the EB-2 national interest waiver, carry less exposure to this kind of rulemaking.
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Source: Reginfo.gov Unified Agenda - DHS/USCIS RIN 1615-AD00