The Department of Homeland Security (DHS) has published the New H-1B regulation. This appears to be in the effort to restrict legal immigration that has enhanced the American economy for centuries.
The rule is an interim final rule (IFR), it is therefore vulnerable to legal challenges in federal court. See article DHS is Taking Final Steps for The Publication of a New H-1B Regulation.
The IFR has been published on October 8, 2020 and will take effect on December 7, 2020. It will apply to all H-1B petitions, including extensions and amendments, filed on or after the effective date of the rule. The rule revises regulations regarding the H-1B nonimmigrant visa program. The rule’s changes to the H-1B program restrict eligibility for the program in several ways, including:
- Employer-employee relationship
The IFR gives a new definition to the employer-employee relationship. In addition to the common law factors to establish the right to control (supervise, hire and fire), other elements will be taken into consideration such as whether the beneficiary produces an end-product that is directly linked to the petitioner’s line of business.
- H-1B specialty occupation criteria
The IFR revises the definition of H-1B specialty occupation to include the requirement of a specific relationship between the required degree field(s) and the duties of the offered position. The IFR also requires the petitioner to establish that the required degree is the minimum requirement for entry into parallel positions at similar organizations. Showing that a degree is common in the industry will no longer be sufficient
- New Distinction between “worksite” and “third-party worksite”
The IFR is establishing a difference between “worksite” and “third-party worksite,” where a third-party worksite is a place “other than the beneficiary’s residence in the United States” that is not owned, leased, or operated by the H-1B petitioner. When the beneficiary is placed at a third-party worksite, a different standard may apply, such as
- Contracts: the requirement that employers provide contracts, work orders, itineraries, or similar evidence to prove employer-employee relationships when sending H-1B workers to third-party worksites.
- Validity: under the IFR there is a one-year validity limit for third-party worksite H-1B
- H-1B site visit authority
Under the IFR, DHS—through its agency, USCIS—has the ability
- To conduct site visits before or after the approval of an H-1B petition
- The authority to conduct visits at third-party worksites
- The authority to deny or revoke a petition as a result of a petitioner’s or third party’s refusal to cooperate with or permit a site visit
What comes next?
Before the rule takes effect, employers will have 60 days to offer feedback to DHS on the practical impact of the rule on their business and operations.
The IFR is restoring requirements that were just defeated earlier this year in federal court. Earlier this year USCIS agreed to a settlement pursuant to the ITServe Alliance case. The settlement included the rescission of the exact same provisions DHS is now publishing in the IFR. It is therefore very likely that it will be challenged in court in its form as an interim rule and in its substance for violation of existing law and practice.