The past few years have not been easy on the H-1B program.  Now, over the next few months, new regulations surrounding immigration to the United States will be introduced that will continue to impact H-1B beneficiaries, the employers that hire them, and the lawyers who represent them. 

Next month, December 2019, DHS announced they will propose regulation changes that, “Revise the definition of specialty occupation” and “revise the definition of employment and employer-employee relationship.”  They also announced changes surrounding wage level requirements.

These announcements come on the heels of recently declassified USCIS documents that show restriction of H-1B visas since 2017 with no basis in regulatory changes.

The bad news is, they may get their regulatory basis for rejecting and issuing RFEs for the H-1B petitions they have already been targeting.  The good news is, we already have a basis of understanding for how to work with these proposed regulations should they be passed, because we have been fighting these Denials and RFEs for years now, and we have gotten very good at it. 

Specialty Occupation Issues

In recent years, the exception has become the adjudicating factor when it comes to degree requirements for specialty occupations.  For example, a now-common RFE magnet job, Computer Programmer, usually requires a minimum of a US bachelor’s degree or higher to be hired to that position.  Sometimes employers will hire employees to this position with only an associate degree, so now petitions for these jobs constantly face specialty occupation issues.  Borderline occupations that sometimes do not have the bachelor’s degree minimum requirement will need added documentation as to why the job requires knowledge and skills associated with the attainment of a bachelor’s degree or higher, including a detailed job description and breakdown of the duties, tasks, and responsibilities of the job, and an expert opinion letter.

Employer-Employee Relationship Issues

Over the past few years, USCIS has been requiring H-1B workers that work on projects or at third party sites to have a complete itinerary of the work they will be performing for the entire duration of their H-1B visa.  This has especially impacted IT consulting firms.  If this is the situation, a complete timeline that lays out which projects the H-1B employee will be working on, where they will be working, who they will be working for, and how their work will be controlled and supervised is necessary.

Wage Level Issues

H-1B employees with low wage levels have run into trouble the past few years for issues largely related to specialty occupation issues.  USCIS often will wrongly associate a low wage level with an entry-level occupation.  This is not always the case.  The H-1B program was created largely in part to provide jobs for international students who graduate from US bachelor’s degree programs.  Since these graduates have the skills and knowledge needed for the job, but not necessarily the work experience, they will need a high level of supervision to start, which factors into their starting wage level.  If this is your situation, you must include a detailed breakdown of the factors that went into setting the wage level accompanied by an expert opinion letter that provides analysis and veracity to this decision.

Even if these new regulation proposals do not become law, there is no guarantee that USCIS will not simply continue to adjudicate H-1B petitions based on these guidelines.  If you, or if your employee or client faces one of these situations, it is important to be prepared.  Understand the added documentation your case will need, and make sure to provide an expert opinion letter from the RIGHT kind of expert whose credentials USCIS will accept.

For a free review of your case visit ccifree.com/. We will get back to you in 48 hours or less.