A new Department of Homeland Security (DHS) rule will tighten H-1B eligibility and impose new obligations on H-1B employers. The DHS published the new rule on October 8, 2020 but it will not take effect until December 7, 2020. It will apply to all H-1B petitions, including extensions and amendments, filed on or after the effective date of the rule. The following are some key changes to the H-1B program:
Specialty Occupation Definition
The new DHS rule amends the definition of “specialty occupation” to clarify that there must be a direct relationship between the required degree field(s) and the duties of the position. This amendment codifies existing USCIS policy and practice.
The new DHS rule also amends the four (4) criteria to qualify as a “specialty occupation”. The amended criteria will make it significantly more difficult for many positions to qualify as a specialty occupation.
The new DHS rule adds definitions that distinguish a “worksite” from a “third-party worksite.” Under the new rule, a worksite is the physical location where the work is performed by the worker and must conform to the DOL LCA rules. A third-party worksite is a place “other than the beneficiary’s residence in the United States” that is not owned, leased, or operated by the petitioner.
The new rule clarifies the types of corroborating evidence employers must submit in third-party placement cases including master services agreement, accompanying work orders and statements of work, and a detailed letter from the end-client.
The new rule also limits the maximum period of authorized admission to one (1) year when the beneficiary will be working at a third-party worksite.
The new DHS rule clarifies how USCIS will determine whether an employer-employee relationship exists. The rule draws from existing case law to establish eleven (11) non-exhaustive factors to be considered when the beneficiary does not have any ownership interest in the employer and six (6) additional factors if the beneficiary does possess an ownership interest in the employer.
Codification of USCIS Site Visits
USCIS’s Fraud Detection and National Security Directorate has conducted site visits to verify compliance with the H-1B program. The new rule codifies USCIS’ site visit authority, including:
- the ability to conduct site visits before or after the approval of an H-1B petition;
- the authority to conduct visits at third-party worksites; and
- the authority to deny or revoke an H-1B as a result of a petitioner’s or third party’s refusal to cooperate with a site visit.
The new DHS rule will be the subject of multiple federal lawsuits. Plaintiffs will seek preliminary injunctions to block the DHS from enforcing the new rule while challenges are litigated in court.
Our law firm is closely analyzing the new DHS rule and monitoring its implementation. If you have any questions, please contact our office.