Increased H-1B Restrictions Planned for December 2020

On October 8, the Trump Administration published an Interim Final Rule increasing H-1B restrictions 60 days from the date of publication. Unless enjoined, the rule will redefine specialty occupation, employer-employee relationships, and limit third-party worksites.

Major H-1B Updates

  • Requires direct relationship between degree and duties of the position (i.e. sub-specialty)
  • Bachelor’s degree is always required, not “usually” or “normally” as required by the current regulations
  • One-year maximum validity period for all H-1B petitions listing a third-party worksite
    • Applies even if the third-party worksite is secondary to the primary worksite
  • Expands  requirements for bona fide, non-speculative job offers
  • Increase site visits and penalties for non-compliance
    • Refusal to cooperate may be grounds for denial or revocation of any H-1B petition for workers at the inspected worksites

Background

Since President Donald Trump signed the “Buy American, Hire American” executive order on April 18, 2017, the Department of Homeland Security has made a series of changes to adjudication processes through policy memoranda and internal directives. The executive order put a special emphasis on the H-1B program and directed the Secretary of Homeland Security to “suggest reforms to ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” RFEs and denials have increased since policy memos and adjudications have shifted to align with the executive order.

Earlier this year, a Presidential Proclamation “Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak.” This followed an earlier order that suspended new lawful permanent residents from entering to “to protect unemployed Americans from the threat of competition for scarce jobs.” The latest order prohibited the entry of certain nonimmigrants through December 31, 2020, including H-1B and H-2B visa holders (and family members accompanying or following to join),  certain J visa holders, and all L visa holders and their dependents. The Department of State has since expanded “national interest exemptions” from the order. We recently reported on 3 Eligibility Criteria for Overcoming the L-1 Travel Ban and 5 Eligibility Criteria for Overcoming the H-1B Ban.

The interim final rule is also proceeding despite court cases striking down key provisions of policy memos enforcing requirements not supported by the regulations. The courts determined that “subspecialty” degree requirements and strict interpretations of employer-employee relationship were “inconsistent” with regulations and since implemented without rulemaking, “cannot be enforced.” The agency may be attempting to now implement these stricter policies through the formal rulemaking process.

FREQUENTLY ASKED QUESTIONS

What effects would the rule have on H-1B visas?

The administration has signaled its intention multiple times over the last few years to restrict legal immigration by reducing the number of H-1B visas awarded. The rule will revise the definitions of specialty occupation and employer-employee relationship. The companion DOL rule effective on October 8, 2020, also increases prevailing wages by changing how the percentiles are calculated for each level.

  • Employers are likely to see consulting and IT services industries targeted for their use of “third-party placement.” Adjudicating officers have often questioned the placement of H-1B workers at various worksites and offered short approval periods based on the contracts or itineraries provided.
  • The rule is likely to affect “routine” jobs such as software engineers, pharmacists, etc. to encourage employers to hire U.S. workers that may not require “specific” specialty degrees.
  • The DOL rule will increase wages in an attempt to limit H-1B employment.

Could an H-1B rule be implemented this year?

Regulations require a comprehensive OMB review for rules deemed “economically significant” but rather than going through the public notice and comment period, the rule has been expedited to the Office of Management and Budget review stage. While there is a short 60-day period of notice and comment, the rule is scheduled to be implemented on December 7, 2020, without regard to the outcome of the comment period. There are multiple lawsuits in progress.

What can you do now?

Employers should be prepared for increased restrictions when planning for upcoming labor needs. Ahead of the rule, employers can:

  • File extensions early before standards are revised
  • Gather strong evidence of specialty occupation and employer-employee relationship
    • Contracts showing availability of work
    • Comprehensive job descriptions outlining the specialized nature of the work
    • Document qualifications and requirements for similar roles in the company and industry
  • Ensure salary levels are appropriate for role
  • Monitor Challa Law Group’s social media, website, and tune into our webinars for the latest updates

Contact Challa Law Group

H-1B extensions can be filed up to 6 months in advance of the ending validity date. Contact Challa Law Group to start your extension today.

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