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Update - Dec 02, 2020
A federal judge in San Francisco on Tuesday (Dec 01, 2020) struck down this Trump administration policy. This policy, which would have gone into effect December 07, 2020 and would have narrowed who qualifies for H-1B visas based on their specific higher-education degrees and would have shortened the length of visas issued to some contract workers.
Under the Trump administration’s long sought objective of overhauling the H-1B program, the Department of Homeland Security (DHS) announced (on October 06, 2020) a change in how they would consider H-1B petitions going forward.
The DHS rule redefines the “speciality occupations” criteria that qualifies a foreign national to get a H-1B visa. The petition now would need to prove that the employee has a college degree in the specific field they are seeking to work in. The new rule also expands compliance enforcement and puts a limit on H-1B visas granted to third-party staffing agencies for a period of one-year instead of the current three-year period.
The Department of Labor’s Interim Final Rule, which took effect on October 08, 2020 was a part of the new changes. This DHS rule goes into effect in December 07, 2020.
Here are some of the other changes that the rule dictates -
Change to Employer-Employee Relationship Requirements
The DHS rule dictates that an employer petitioning for H-1B visa must be able to prove -
Supervision of the foreign national employee and their work
Evaluate the work done
Control over hiring, paying and firing the employee
Claim the beneficiary as an employee for tax purposes
The employee delivers service or product directly related to employer’s business
Evidence to prove H-1B speciality occupation work
Direct employment: USCIS will review the job duties for the H-1B position to ensure that it’s a speciality occupation.
Third-Party employment: USCIS will require additional documentation to prove specialty occupation:
Statement of Work
Supplier Agreements
Master Service Agreement and Related Work Orders
Technical documents related to the speciality work. For example, project reports, milestone tables, market research reports, funding documents and other work related documents
Any other legally binding documents
Third-Party H-1B visas: 1-year validation
DHS has determined that giving a three-year approval to third-party worksite employment visas increases the chances of fraud. Therefore, for staffing companies and third-party employers, the maximum validation period for H-1B will now be one-year instead of three-years previously. There will also be added visits and other verifications to keep employers compliant.
USCIS will now be required to send an explanation for petitions where a longer validation period was requested but a shorter period is assigned.
No more itinerary requirement for third-party H-1B petitions
USCIS won’t require the petition to provide day to day activities or work activities to issue an H-1B visa. This was a part of a previous rule that DHS lost in the cort.
Expect more site visits
The DHS can elect to inspect a site - physically, electronically or by phone - before and after issuing a visa. To ensure compliance, the visits would also include DHS interviewing officials and other employees of the employer and reviewing employer’s immigration records. If the employer does not cooperate, the DHS has the power to revoke all existing visas or deny any new/pending petitions.
Expected challenges to the rules
According to USCIS, it did not follow the 9-Step Making Regulatory Process because of the economic downturn because of COVID-19. This ensured that there was no public notice period and time for comments before the rules went into effect.
These rules are expected to see legal challenges and lawsuits. However, until these rules are tested and overturned in court, they are fully enforceable.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.
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