New DHS Rule Revising H-1B Nonimmigrant Visa Program Released

DHS released its interim final rule (IFR) in the Federal Register on October 8, 2020, which would revise the definition of the term “specialty occupation” and make other changes to the H-1B nonimmigrant program. The IFR is effective December 7, 2020. To view the IFR, please click here

Below is a summary of some of the key points of the rule: 

  1. Amending the definition of “specialty occupation” to align with the statutory definition. The amended definition clarifies that a position would not qualify as a specialty occupation if attainment of a general degree, without further specialization, is sufficient to qualify for the position. The petitioner will have the burden of demonstrating that there is a direct relationship between the required degree in a specific specialty and the duties of the position. 
  1. Amending the criteria for specialty occupation positions. DHS is eliminating the terms “normally,” “common,” and “usually” from the regulatory criteria. This means that the petitioner will have to establish that the bachelor’s degree in a specific specialty or its equivalent is a minimum requirement for entry into the occupation in the U.S. by showing that this is always the requirement for the occupation as a whole, the occupational requirement within the relevant industry, the petitioner’s particularized requirement, or because the position is so specialized, complex, or unique that it is necessarily required to perform the duties of the specific position. 
  1. Defining “Worksite” and “Third Party Worksite.” These definitions will be added to the existing list of definitions in the regulations. 
  1. Clarifying the definition of “United States Employer” by striking the word “contractor” from the general definition , inserting the word “company” in that general definition, expanding upon the existing requirement to engage the beneficiary to work within the U.S., and expanding upon the employer-employee relationship and the factors used to determine if a valid employer-employee relationship exists between the petitioner and the beneficiary. 
  1. Corroborating evidence of work in a specialty occupation. At the time of filing the petitioner must establish that it has actual work in a specialty occupation available for the beneficiary as of the start date of the validity period as requested on the new petition. For third party placement cases, DHS will require the petitioner to submit evidence such as contracts, work orders, or other similar evidence to establish that the beneficiary will perform services in a specialty occupation at the third party worksite and that the petitioner will have an employer-employee relationship with the beneficiary. 
  1. Maximum validity period for third-party placements. DHS will set a 1-year maximum validity period for all H-1B petitions in which the beneficiary will be working at a third-party worksite. DHS believes this is reasonable given the nature of third-party placements, with the nature of the work being more transient and with potential for changes to the terms and conditions of employment. 
  1. Written explanation for certain H-1B approvals. DHS will require its issuance of a brief explanation when an H-1B petition is approved but USCIS grants an earlier end validity date than requested by the petitioner. 
  1. Revise the itinerary requirement for H-1B petitions. The itinerary requirement will not apply to H-1B petitions. 
  1. Site Visits. DHS is adding regulations specific to the H-1B program to codify its existing authority and clarify the scope of inspections – particularly on-site inspections – and the consequences of a petitioner’s or third party’s refusal or failure to fully cooperate with the inspections.

A lawsuit in the U.S. District Court for the Northern District of California has already been filed against the DHS rule. In Chamber of Commerce, et al. v. DHS, et al., the complaint requests that the Court to vacate and set aside the DHS rule, issue a declaratory judgment establishing that the rule was unlawfully issued without notice and comment, enjoin the defendants from enforcing or otherwise carrying out the DHS rule, postpone the effective dates and enjoin the defendants from implementing the rule pending conclusion of the litigation.

By: Kristina M. Hernandez

Kristina is the NIV Practice Manager and an associate attorney at Reddy & Neumann, P.C. She was admitted to the State Bar of Texas in 2011. Her practice includes representing companies and individuals with employment-based visa petitions and applications and advising clients regarding litigation options in federal court pursuant to the Administrative Procedures Act (APA). Kristina also guides employers to ensure compliance with all Form I-9 requirements by conducting internal audits of clients’ records, processes, and procedures.

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