New Rule: H-1B Petitions Will Be Denied More Often After Rule Change
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H-1B Rule: The Department of Homeland Security (DHS) has published one more rule that will make it harder and more costly for U.S. organizations to hire highly skilled workers.
As a companion guideline to the “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” rule. Also, DHS has issued the “Strengthening of the H-1B Nonimmigrant Visa Classification” rule. Like its companion, it is being released as an Interim Final Rule (IFR), yet will become effective after 60 days. Moreover, DHS expects around 33% of petitions for the H-1B visa category will be denied under the new rule.
New H-1B Rule
The H-1B Rule systematizes policies USCIS has been pursuing over the past serval years. That made it harder to acquire H-1B approvals and brought about more Requests for Evidence (RFEs) and petition denials — all without transparent legislative or regulatory changes. Employers sued the administration in federal court. Contending that a number of these policies were “arbitrary and capricious” in violation of the Administrative Procedures Act (APA).
Also, Check[Democrats flay Trump for announcing new curbs on H-1B visas without scrutiny]
Accordingly, USCIS settled the cases and agreed to pull back some of the most contentious agency policies. In response, DHS is planning to reimplement a considerable lot of those policies through the truncated Interim Final rulemaking process. DHS contends that this is essential so as to ensure U.S. jobs during the current COVID-19-related financial downturn. Organizations that hire H-1B workers maintain that access to these skilled workers is basic to ongoing tasks and benefits the U.S. economy.
Key takeaways of the new rule for employers:
- The meaning of a “specialty occupation” is updated to focus more specifically on the connection between the degree requirements and the obligations of the position. This will make it harder for those in new, innovative fields, where specific specialty degrees are not yet even accessible.
- Petitioners will bear the burden of demonstrating a specific bachelor’s degree is always a requirement. Not just “normally” a requirement for the position, a near-impossible task.
- Temporary workers will never again be specifically listed among those who qualify as U.S. employers. Despite the fact that they can even now qualify as U.S. employers by demonstrating a bona fide employer-employee relationship.
- The meaning of a bona fide employer-employee relationship will focus more heavily on a totality of circumstances standard. Instead of any one factor, for example, the right to control.
- H-1B workers at third-party locations will be restricted to one year. As opposed to the at present available three years, renewable yearly. Petitioning employers planning to put H-1B laborers at third-party worksites. However, they should give corroborating proof to demonstrate that specialty occupation work will be accessible all through the requested time period. Also, these changes will enormously increase the expenses and documentary requirements for specific applicants who depend on third-party placements.
- The H-1B Rule arranges the scope and potential consequences of USCIS Fraud Detection and National Security Officers (FDNS) worksite assessments. If the FDNS can’t check realities identified with an H-1B petition or compliance with H-1B prerequisites. Due to the failure or refusal of the petitioner or third party to cooperate, such disappointment might be a reason for the denial or revocation of a petition.
Conclusion
Since this sweeping rule is being given as an Interim Final regulation without opportunity for full notification and comment. Litigation looking to enjoin implementation is likely. What’s more, the rule is probably going to be challenged while the validity of Chad Wolf’s appointment as Acting Director of DHS is as yet being challenged.
