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New Regulation Further Restricts H-1B Visa Program

7 Oct

On October 8, 2020, U.S. Citizenship and Immigration Services (USCIS) is expected to publish a new, interim final rule that will impose stricter requirements on those seeking to qualify for H-1B classification. The effective date of the new rule is expected to be December 7, 2020. 

Change in H-1B “Specialty Occupation” Definition and Criteria 

Under the Immigration & Nationality Act, an “H-1B specialty occupation” is defined as “an occupation that requires (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” 
 
USCIS regulations implementing the statute established criteria by which an employer might demonstrate that a particular offered position qualifies under the statutory definition of “specialty occupation.  Under these current regulations, employers may demonstrate that an offered position is a “specialty occupation” by demonstrating that the normal minimum requirement for entry into the occupation is a bachelor’s degree or higher (or its equivalent) in a particular specialty, that the degree is common in the industry among similar employers hiring for similar positions, that the petitioning employer normally requires at least a bachelor’s degree or equivalent in a specialty field, or that the duties of the position are so complex that they are normally associated with a bachelor’s degree or higher in a specialty field. 
 
To qualify for H-1B classification, H-1B workers must demonstrate they meet the minimum requirements for employment in the particular specialty occupation. 

Under the new USCIS regulation slated to go into effect in December, more restrictive criteria govern how an employer must demonstrate that an offered position qualifies as a specialty occupation.  Employers will be required to demonstrate that the offered position meets one of the following criteria: 

  1. A U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent, is the minimum requirement for entry into the particular occupation in which the beneficiary will be employed; 
  2. A U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent, is the minimum requirement for entry into parallel positions at similar organizations in the employer’s United States industry; 
  3. The employer has an established practice of requiring a U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent, for the position.  The petitioner must also establish that the proffered position requires such a directly related specialty degree, or its equivalent, to perform its duties; or
  4. The specific duties of the proffered position are so specialized, complex, or unique that they can only be performed by an individual with a U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent. 

Notably, the new criteria do not allow for demonstration that a degree is “normally” required or that it is “common” in the industry; rather, the new criteria indicate that the degree must be the minimum requirement.  USCIS consults the DOL Occupational Outlook Handbook (OOH) to determine the minimum requirements for different occupations, and many OOH articles indicate merely that a particular degree is normally required or is common.  Examples include the OOH articles for Software Developers and Computer Systems Analysts.  The stricter “specialty occupation” criteria likely will make it more difficult for employers to secure approval to employ H-1B workers in these occupations, particularly at the entry level. 

Other Changes 

The new regulation also addresses other areas of the H-1B program, such as site visits, third-party worksites, and the required employer-employee relationship. 
 
H-1B site visit authority is codified, and failure to comply or cooperate with a site visit can be grounds for denial of a pending petition or revocation of a petition that has already been approved. 
 
Petitions involving placement of H-1B workers at third-party worksites must be accompanied by copies of contracts, statements of work or other evidence of bona fide “specialty occupation” work at the location, and the petition may only be approved for a one-year period. 
 
All employers must be able to demonstrate that an employer-employee relationship exists or will exist between the petitioner and the beneficiary, as determined by reference to the traditional master-servant relationship criteria consistent with common law.

Effective Date 

The purpose of the new rule is to further restrict the number of positions and workers that might qualify for H-1B classification and thereby reduce the H-1B workforce in the United States.  It will become effective December 7, 2020 unless a Federal Court issues an injunction barring or limiting its implementation. 
 
Foster will continue to monitor changes in regulations governing the H-1B visa program and will make future updates available via our firm’s website at www.fosterglobal.com.