DHS Publishes Regulation Impacting H-1B Program

Tonkon Torp LLP

Tonkon Torp LLP

On October 8, 2020, the U.S. Department of Homeland Security (DHS) published an Interim Final Rule (IFR) that significantly revises the "specialty occupation" H-1B legal standard, among other changes. The regulation is effective December 7, 2020, 60 days after publication. We expect this IFR to be legally challenged.

The DHS regulation applies to H-1B nonimmigrant status holders and their employers. It makes a numbers of changes to existing regulatory requirements and adds new requirements. The regulation does not apply to pending or approved petitions.

Key changes include:

  • Specialty occupation
    • Modifies the definition of specialty occupation to make qualification more restrictive
      • Increases focus on tie between degree field and position duties
      • Increases focus on whether bachelor’s degree in a closely-related field is indeed required
      • Note: specialty occupation standard applies to H-1B1 (Chile/Singapore) and E-3 (Australia) classifications
    • Previously approved petitions may no longer be approved under the new definition
  • Multi-prong test of U.S. employer and employer–employee relationship
  • Corroborating evidence of the availability of specialty occupation work from the requested start date
    • For example, may request contracts or similar evidence of work availability, even for in-house/onsite work
  • Restrictions on third party placement petitions
    • Emphasizes that third party placement scenarios may have difficulty demonstrating required employer–employee relationship
    • One year maximum approval (for third party placement petitions)
  • Site visits
    • May be telephonic, electronic, or on site
    • May occur after filing H-1B petition and before approval
    • Refusal to comply may result in the denial or revocation of petitions for any H-1B workers at the worksite subject to inspection

The government has announced that it expects increased scrutiny and denials of H-1B petitions under the new regulations. We generally recommend filing petitions as early as possible with the government as USCIS will likely issue an even greater number of requests for evidence (RFEs) for H-1B petitions going forward.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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