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H-1B Visa Changes Are on the Way

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The Department of Homeland Security (DHS) has published regulatory changes that further restrict H-1B visa eligibility. The changes are set to take effect on December 7, 2020, although they’re already facing challenges in court. Some of the key changes are:

Specialty Occupation

The rule changes the definition of a “specialty occupation” and now requires a direct relationship between the degree field(s) and the duties of the position. General degrees, such as engineering or business, without further specialization or explanation, are no longer sufficient. In cases involving degrees in multiple and dissimilar fields of study, petitioners must demonstrate how each field provides specialized knowledge and is directly related to the position. Petitioners must establish that a bachelor’s degree in a specific specialty is a minimum requirement for entry into the occupation in the U.S. by establishing that: 
  • The required degree is always the requirement for the occupation as a whole;
  • The required degree is always the requirement within the relevant industry;
  • The required degree is always the petitioner’s requirement for the position; or
  • The specific duties of the position are so specialized, complex, or unique that the required degree is necessarily required to perform these duties.

Third-Party Worksites

The rule adds specific definitions of “worksite” and “third-party worksite” and sets a one-year maximum validity period for all H-1B petitions in which the beneficiary will be working at a third-party worksite. A worksite is now defined as “the physical location where the work is actually performed by the H-1B nonimmigrant.” A third-party worksite is now defined as “a worksite, other than the beneficiary’s residence in the United States, that is not owned or leased, and not operated, by the petitioner.” 

Employer-Employee Relationship

The rule also changes the definitions of “United States employer” and “employer-employee relationship.” Specifically, a U.S. employer is defined as a person, firm, corporation, company, or other association or organization in the United States which: 
  • Engages the beneficiary to work within the U.S., and has a bona fide offer for the beneficiary;
  • Has an employer-employee relationship with respect to employees under this part; and
  • Has an Internal Revenue Service Tax identification number.
The employer-employee relationship is defined to be the “conventional master-servant relationship as understood by common-law agency doctrine” and is to be evaluated by USCIS through a list of eleven factors. A petitioner must also provide corroborating evidence of work in a specialty occupation at the time of filing.

Site Visits

The rule states the authority of USCIS to conduct H-1B site visits and describes the scope of inspections, which may include the petitioner’s headquarters, satellite locations, or the location where the beneficiary works or will work, including third-party worksites. The rule also specifies that failure or refusal to cooperate with a site visit may be grounds for denial or revocation of any H-1B petition for the location(s) which are a subject of inspection.
Contact GoffWilson today to prepare yourself and your employees for these regulatory changes. GoffWilson solely practices immigration law and is an ideal partner for navigating complex and ever-changing immigration laws.

Filed under:H-1B Visa, Immigration Law, Worksite Enforcement