Provisions of New DHS Rule will Limit H-1Bs Significantly

On October 8, 2020, the Trump Administration published changes to H-1B eligibility, to take effect on December 7th unless enjoined by a court(s).

In our opinion, a large percentage of H-1B petitions previously approved will no longer be extended, nor new petitions approved, under the more stringent requirements on the educational qualifications of H-1B employees (discussed below). DHS is also limiting the ability of recruitment companies to bring workers to the U.S. to subcontract out for projects to 3rd-party companies: there will now be a limit on the amount of time an H-1B worker may perform work at a site other than the recruiting H-1B employer’s physical location. Further analysis will follow as things develop.

Specialty Occupation

• The rule amends the definition of a “specialty occupation” at 8 CFR 214.2(h)(4)(ii) to indicate that there must be a direct relationship between the required degree field(s) and the duties of the position:
  • General degrees in engineering, liberal arts, business, et cetera without further specialization or explanation are not sufficient to meet specialty occupation.
  • In cases where the petitioner lists degrees in multiple “disparate” fields of study as the minimum entry requirement for a position, the petitioner must establish how each field of study is in a specific specialty providing “a body of highly specialized knowledge” directly related to the duties and responsibilities of the particular position.
  • Where a position may allow a range of degrees, and apply multiple bodies of highly specialized knowledge, each of those qualifying degree fields must be directly related to the proffered position.
• Instead of demonstrating that a bachelors’ degree is “normally”, “commonly” or “usually” required; petitioners will have to establish that the bachelor’s degree in a specific specialty or its equivalent is a minimum requirement for entry into the occupation in the United States by showing that the required degree is always:
  • The requirement for the occupation as a whole;
  • The occupational requirement within the relevant industry;
  • The petitioner’s particularized requirement; or
  • Because the position is so specialized, complex, or unique that it is necessarily required to perform the duties of the specific position.

Third-Party Worksites

• The definition of “worksite” is amended (so that it is similar to the DOL definition of “place of employment” at 20 CFR 655.715) as “the physical location where the work is actually performed by the H-1B nonimmigrant.”
• The rule defines “third-party worksite” as “a worksite, other than the beneficiary’s residence in the United States, that is not owned or leased, and not operated, by the petitioner.”
• The rule sets a 1-year maximum validity period for all H-1B petitions in which the beneficiary will be working at a third-party worksite. This applies to all H-1B petitions where any identified worksite is a third-party worksite, not just the primary worksite

Employer-Employee Relationship

• The definition of “United States Employer” is amended by:
  • Striking the word “contractor” from the definition of “United States employer,” although DHS also explains at length that the deletion does not necessarily preclude a contractor from qualifying as a U.S. employer;
  • Inserting the word “company” in the general definition; and
  • Expanding upon the existing requirements by requiring that an employer must engage the beneficiary to work within the United States and have a bona fide, non-speculative job offer for the beneficiary.
• The rule codifies, at 8 CFR 214.2(h)(4)(iv)(C), that at the time of filing, the petitioner must establish that a bona fide job offer exists and that actual work will be available as of the requested start date.
• The rule defines the term “employer-employee relationship” to be the “conventional master-servant relationship as understood by common-law agency doctrine.” It includes a non-exhaustive list of factors to be considered in the totality of the circumstances, essentially restoring the January 2010 Neufeld Memo on employer-employee relationship. However, in addition to taking into account whether employer has “the right to control” the employee’s work as one of the enumerated factors, USCIS will also look at whether the employer actually exercises that right to control.
• Additionally, the petitioner will be required to demonstrate that it can actually take the claimed actions when it comes to these factors.
• The rule requires that petitioners filing third-party worksite petitions must submit evidence such as contracts, work orders, or other similar evidence (such as a detailed letter from an authorized official at the third-party worksite) to establish that the beneficiary will perform services in a specialty occupation and that the petitioner will have an employer-employee relationship with the beneficiary. Such documentation may also be requested by USCIS for any and all H-1B petitions in a case-by-case basis.

Other Provisions

• The rule requires USCIS to issue a brief explanation when an H-1B nonimmigrant petition is approved but USCIS grants an earlier end validity date than requested by the petitioner.
• The rule revises the itinerary requirement at 8 CFR 214.2(h)(2)(i)(B) to specify that this provision will not apply to H-1B petitions. DHS will still apply the itinerary requirements at 8 CFR 214.2(h)(2)(i)(F)(1) to H-1B petitions filed by agents.
• The rule adds provisions regarding H-1B site visits to codify its authority to conduct site visits and describe the scope of inspections:
  • The regulation indicates that the possible scope of an inspection may include the petitioning organization’s headquarters, satellite locations, or the location where the beneficiary works or will work, including third-party worksites, as applicable.
  • The rule also specifies that failure or refusal of the petitioner or a third-party to cooperate with a site visit may be grounds for denial or revocation of any H-1B petition for H-1B workers performing services at the location or locations which are a subject of inspection, including any third-party worksites.