Mon. Sep 20th, 2021

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

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H/L/J Nonimmigrant Proclamation

H1B Visa Eligibility Requirements: The US government under the Trump Administration has promised since 2017 that it would be trying to change the meaning of “specialty occupation” as used to decide H-1B visa eligibility. On 3rd September 2020, the United States DHS sent another proposed interim final rule. It “Strengthening the H1B Nonimmigrant Visa Classification Program,” to the White House’s OIRA (Office of Information and Regulatory Affairs). The new rule might be more difficult for employers – particularly outsourcing, staffing, and counseling organizations – to support employees on H1B visas.

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

While the actual content of the new guideline isn’t yet available. Almost certainly, the interim final rule will formalize some of the policies that USCIS (United States Citizenship and Immigration Services) has already been utilizing to give RFE (Requests for Evidence) and rejections related to H-1B petitions. The policies include are as follows:

  • Changing the meaning of “specialty occupation” so with the goal it mainly focuses on demonstrating the match between the job’s degree requirements, the job description, and the forthcoming employee’s specialized degree.
  • Updating pay and LCA (Labor Condition Application) requirements to focus only on the “best and most brilliant” specialized employees.
  • Restoring a few requirements for laborers at third-party worksites, making it harder to demonstrate the employer-employee relationship for these positions.

Why DHS is Modifying H-1B Requirements

DHS has said it is trying to change the meaning of H-1B specialty occupation with the objectives of:

  • Attracting the best and the brightest foreign nationals to the United States through the H1B program
  • Protecting US laborers and wages by:
  • Guaranteeing employers pay reasonable wages to H-1B workers
  • Changing the meaning of employment and the employer-employee relationship
  • Decreasing fraud in the H-1B program and granting visas only for truly specialized positions

What’s Next for H-1B Visa Regulations

The Office of Information and Regulatory Affairs (OIRA) has 90 days to survey the proposed regulation. After review and endorsement, the OIRA is expected to issue the rule in the Federal Register. where it would become effective shortly thereafter. Yet, it is likely that this new rule will be inquired in court, which could delay execution.

[Immigration Alert September 2020]

The full importance of the DHS’s interim last rule is unclear until the full rule is issued, and its legal challenges are judged. Nevertheless, the new rule will likely make it more difficult for H1B employers to demonstrate the employer-employee relationship. This effect will be especially felt by consulting, staffing, and outsourcing organizations.

The Chugh, LLP group is closely checking policy updates associated with H1B visa eligibility. We will share updates immediately when they are available. For help sponsoring an employee on an H-1B visa, or understanding how guidelines affect your processes, then please contact your trusted Chugh, LLP attorney.

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