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Ogletree Deakins | Department of Homeland Security Issues Changes to Eligibility Requirements for the H-1B Nonimmigrant Visa

Summary

The U.S. Department of Homeland Security (DHS) has released an interim final rule (IFR) titled “Strengthening the H-1B Nonimmigrant Visa Classification Program.” The IFR is intended to further the goals of the Trump administration’s Buy American, Hire American campaign by narrowing the regulations that govern the H-1B visa program. The rule is expected to be published in the Federal Register on October 8, 2020 and the changes will go into effect 60 days later.

The IFR revises and clarifies  the definitions of “specialty occupation” and “employer-employee relationship,” both key requirements in H-1B filings. These changes include the following:

  • The rule revises the statutory definition of “specialty ” Per the revised definition:
    • There must be a direct relationship between the required degree field(s) and the duties of the For example, if a position requires a bachelor’s degree in any field of study to qualify, it will not be considered a specialty occupation. Additionally, the attainment of a general degree (liberal arts, business administration,) without further specialization in a specific area of focus will not qualify as a specialty occupation.
    • The historical regulatory standard that a Bachelor’s degree or its equivalent is “normally” required has now been changed to “always” This means that Petitioners must prove that the degree required for the position is always the requirement for the occupation as a whole, rather than demonstrating that only most of the occupations maintain this requirement.
  • The new rule distinguishes between the definition of “worksite” and “third-party worksite” as follows:
    • A “worksite” will be defined as the physical location where the work is actually performed by the H-1B nonimmigrant, and a “third-party worksite” is a place other than the beneficiary’s residence in the United States, that is not owned or leased, and not operated, by the
  • The new  rule  codifies  long  standing  practices used  in  determining  an  employer-employee relationship:
    • S. citizenship and Immigration Services (USCIS) will analyze the following factors (among others) and make a determination based on the totality of the circumstances:
      • Whether the petitioner supervises the beneficiary, and if so,  where does the supervision take place;
      • If the supervision is not at the petitioner’s worksite, how  does the petitioner maintain supervision;
      • Whether the petitioner has the right to control the work of the beneficiary on a day to day basis and to assign projects;
        • Whether the petitioner hires, pays and has the ability to fire the beneficiary;
        • Whether the petitioner evaluations the work-product of the beneficiary;
        • Whether the petitioner has the ability to control the manner and means in which the work product of the beneficiary is

A summary of additional changes included within the new H-1B rule is included below.

  • The new rule clarifies the requirement that an employer must have non-speculative employment for the beneficiary at the time of filing, by requiring proof that a bona fide job offer exists and that actual work will be available as of the start
  • In regard to third-party placements:
    • USCIS will approve H-1B petitions where the beneficiary will work at a third-party worksite for a maximum one year validity period, as opposed to the current validity period of three
    • The new rule codifies the types of corroborating evidence petitioners must submit in third-party placement cases, which includes contracts, work orders and other similar evidence to establish that the beneficiary will perform services in a specialty occupation at a third-party The documentation must be detailed enough to provide “sufficiently comprehensive view” of the work to be performed.
    • DHS will reinstate a prior invalidated policy that requires the employer to provide an itinerary for H-1B employees who will work at third-party
  • The new rule codifies USCIS’ authority to conduct H-1B inspections, including but not limited to on-site visits of the petitioning organization’s facilities, interviews with its officials, review of its records related to compliance with immigration laws and regulations, and interviews with any other individuals or review of any other records USCIS may lawful
    • Inspections may take place at an organization’s headquarters, satellite locations, or location where the beneficiary works or will work, including third-party
    • If USCIS is unable to verify facts related to an H-1B petition or compliance with H-1B petition requirements because the petitioner or third-party refuse to cooperate with the site visit, USCIS may deny or revoke any H-1B petition for workers performing services at the location or locations subject to he in section, including any third-party

Because this change is being issued as an IFR, it will go into effect without input from various stakeholders. Litigation is expected.

Contact:

  • Ceridwen J. Koski, Shareholder | ceridwen.koski[at]ogletree.com

Compliments of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. – a member of the EACCNY.