Since 2017, H-1B visa applicants have faced specialty occupation and employer-employee relationship issues from USCIS wrongly adjudicating petitions based on the visa’s own eligibility rules. So far, RFE and Denial responses and court challenges have been successful in overturning these decisions. Now, a new regulation has been sent for review to the Office of Management and Budget to change the rules to meet their currently illegal decisions.
The two facets of this new regulation could restrict H-1B visa access significantly by fundamentally changing the definition of “specialty occupation,” and restricting the interpretation of “employer-employee relationship” to justify the illegal decisions they have already been making.
Currently, a specialty occupation is defined as a job that normally requires a minimum of a US bachelor’s degree in a field related to the job to perform. This new regulation would change normally to always, and require the degree to be in the exact field of the H-1B job. This is problematic for STEM jobs, especially computer-related jobs as there are many applicable degree specializations and most jobs require a mixture of skills. For example, many computer-related professions pull employees from two different majors: statistics and computer sciences. Making H-1B status only available through ONE exclusive degree is not practical for STEM jobs, which is where the bulk of H-1B visas are used.
This part of the regulations restricts H-1B employees working as consultants at third party sites. The basis of this is that the employer cannot control the employee’s work in a way that meets H-1B eligibility requirements when they are working at a different site. To meet this new regulation, the employer must provide all contracts for the three-year duration of the H-1B visa to show that the employee has a full work itinerary. Employers must also show how they will be able to control the work of the H-1B employee at these sites. In the past, employers did not have to show three fully stocked years of non-speculative work or provide additional evidence as to how they can control the work of the employee off-site. Over the past few years, to avoid an employer-employee relationship issue, petitions have had to include this complete itinerary. Now, they will also have to address work control.
There are two good bits of news regarding this new regulation. First, the implementation of this potential new regulation makes it particularly vulnerable to legal challenge. The plan is to publish the regulation as an “interim final rule” that will immediately go into effect without public or legislative input. We are going into this change with the momentum of years of successful RFE and Denial responses, and successful court decisions including the March 31, 2020 Taylor Made Software v. Kenneth T. Cuccinelli ruling, and the March 6, 2020 3Q Digital, Inc. v. USCIS ruling.
The second is that we have anticipated it for years, and we know how to answer specialty occupation and employer-employee relationship issues. Codifying what USCIS has already been doing means we will be facing the same issues but without vagueness or surprise. Every year, we come up with creative solutions to bridge the gaps between USCIS approval trends and the demands of the industries that employ H-1B beneficiaries.
If your case, or if your employee or client’s case will likely be affected by this new regulation, let us help you. For a free review of the case, visit www.ccifree.com. We will respond in 4 hours or less.
Sheila Danzig is the director of CCI TheDegreePeople.com. Sheila specializes in overturning RFEs and Denials for work visas.