US Government Seeking to Change H-1B Visa Eligibility Requirements

By: Gurshaan Chattha

The United States government under the Trump Administration has promised since 2017 that it would change the definition of “specialty occupation” as used to determine H-1B visa eligibility. On September 3, 2020, the United States Department of Homeland Security (DHS) sent a new proposed interim final rule, “Strengthening the H-1B Nonimmigrant Visa Classification Program,” to the White House’s Office of Information and Regulatory Affairs (OIRA). The new rule may make it more difficult for employers –especially staffing, outsourcing, and consulting companies – to sponsor employees on H-1B visas.

Interim Final Rule Likely to Contain Stricter H-1B Eligibility Requirements

While the actual text of the new rule is not yet available, it is likely that the interim final rule will formalize some of the policies that United States Citizenship and Immigration Services (USCIS) has already been using to issue Requests for Evidence (RFE) and denials related to H-1B petitions. These policies include:

• Changing the definition of “specialty occupation” so that it focuses more on proving the match between the job’s degree requirements, the job description, and the prospective employee’s specialized degree
• Updating wage and Labor Condition Application (LCA) requirements to focus only on the “best and brightest” specialized workers
• Reinstating some requirements for workers at third-party worksites, making it more difficult to prove the employer-employee relationship for these positions

Why DHS is Revising H-1B Requirements

DHS has said it is seeking to revise the definition of H-1B specialty occupation with the goals of:

• Attracting the best and the brightest foreign nationals to the United States through the H-1B program
• Protecting US workers and wages by:
  • Ensuring employers pay fair wages to H-1B workers
  • Revising the definition of employment and the employer-employee relationship
• Reducing fraud in the H-1B program and awarding visas only for truly specialized positions

What’s Next for H-1B Visa Regulations

The OIRA has 90 days to review the proposed regulation. After review and approval, the OIRA is expected to publish the rule in the Federal Register, where it would go into effect shortly afterward. However, it is likely that this new rule will be challenged in court, which could delay implementation.

The full implications of the DHS’s interim final rule are unclear until the full rule is published, and its legal challenges are adjudicated. However, it is likely that the new rule will make it harder for H-1B employers to prove the employer-employee relationship. This impact will be particularly felt by staffing, consulting, and outsourcing companies.

Conclusion

The Chugh, LLP team is closely monitoring policy updates related to H-1B visa eligibility. We will share updates as soon as they are available. For help sponsoring an employee on an H-1B visa, or understanding how regulations impact your processes, please contact your trusted Chugh, LLP attorney.