October 16, 2020

U.S. Department of Homeland Security Tightens H-1B Criteria

President Trump’s June 2020 proclamation restricting entry to H-1B, L-1 and certain J-1 non-immigrants also instructed the U.S. Department of Homeland Security (DHS) to look at implementing tighter restrictions on the H-1B category of non-immigrant petitions. As a result, the U.S. Department of Labor recently introduced a new regulation to increase the prevailing wage levels for H-1B, E-3, H-1B1 and PERM programs. More recently, DHS issued regulations to further restrict the eligibility criteria and the employer obligations for H-1B applicants. It is expected that the new regulation will be challenged in court and employers have 60 days from October 8, 2020 to provide feedback to DHS on the ruling.

What has changed?

The DHS regulation issued in the Federal Register is due to take effect 60 days from its October 8 publish date. It will tighten eligibility criteria for the H-1B nonimmigration visa program and impose new obligations on employers who are applying. The new regulations will apply to all new petitions, extensions and amendments submitted on or following the effective date of the new ruling.

In particular, the new rule narrows the definition of the H-1B speciality occupation criteria so that in addition to holding a bachelor’s degree or equivalent qualification, the degree will be required to specifically relate to the H-1B specialty. The petitioning employer can no longer determine that the required degree is “common” in the industry for the particular occupation, they must now provide a degree which is considered the “minimum requirement” for entry into the same position at a similar organization.

Additionally, the ruling provides further definitions around worksites that must conform with the Labor Condition Applications (LCA) rules set forth by the U.S. Department of Labor. The changes are particularly relevant for employers petitioning for visas for employees who will work at third-party sites, or those locations outside of their U.S. residence of record and that they do not own, lease, or operate. Such arrangements are common practice for consulting, HR, or tech firms, for example, whose employees may be performing work at a client site.

Should the changes take effect, the H-1B petitioner of a third-party worksite worker will need to submit such evidence as contracts or work orders demonstrating an employer-employee relationship with the beneficiary, and that these activities are in the speciality occupation for which they are applying. Itineraries will also be required for those H-1B employees working at multiple sites. United States Citizenship and Immigration Services (USCIS) will also restrict the H-1B approval validity period for third-party placement petitions to a maximum of one year as opposed to the current 3 years permitted.

USCIS’s Fraud Detection and National Security Directorate site visits to H-1B work locations will continue, to verify compliance with the terms of the H-1B petition. The new regulation outlines further scope of the terms of the H-1B site visit authority, including:

    • The permission of site visits before or after the approval of an H-1B petition
    • The permission of site visits at third-party worksites
    • The authority to deny or revoke a petition in the event a petitioner or third-party worksite refuses to cooperate with or permit a site visit

What you need to do

For further information on the changing H-1B criteria, please contact the Sterling Lexicon immigration team at immigration@sterlinglexicon.com.

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