New DHS Rule Tightens H-1B Visa Criteria Effective 12/07/2020

U.S. Citizenship and Immigration Services

The Department of Homeland Security (DHS) has released regulatory changes to tighten H-1B eligibility criteria and impose new obligations. The rule was published in the Federal Register on October 8 and will take effect 60 days later.

Effective Date: The new rule applies to all H-1B petitions that are filed on or after the effective date of 12/07/2020.

(1) Specialty Occupation:

An H-1B specialty occupation is one that normally requires a bachelor’s degree or equivalent as a minimum requirement. The new rule amends the definition to mandate a direct relationship between the required degree field and the duties of the offered H-1B position. A position is not a specialty occupation if a general degree (e.g., business administration or liberal arts) without further specialization is sufficient to qualify.

The new rule also mandates that a bachelor’s degree in a specific specialty or its equivalent is always required instead of “normally”, “commonly” or “usually” required.

(2) Worksite vs. Third-Party Worksite:

The new regulation amends the definition of a “worksite” as “the physical location where the work is actually performed by the H-1B nonimmigrant.” It also defines a “third-party worksite” 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.” If the beneficiary will be working at a third-party worksite, the rule allows a 1-year maximum validity period.

(3) Employer-Employee Relationship:

The H-1B petition must establish that the petitioner has a ‘bona fide’, i.e. real, job offer and an employer-employee relationship exists. The new rule defines the term “employer-employee relationship” to be the conventional master-servant relationship. It includes a non-exhaustive list of factors, such as whether the beneficiary produces an end-product that is directly linked to the petitioner’s line of business and whether the petitioner has the right to control, supervise, hire, and fire.

(4) Codification of USCIS Site Visit Program:

USCIS has been conducting site visits to H-1B work locations to verify compliance with the terms of H-1B petitions. The new rule adds provisions to codify USCIS’ authority to conduct site visits. The possible scope of an inspection may include the petitioner’s headquarters, satellite locations, and the location where the beneficiary works, including third-party worksites.

The rule is expected to be challenged in court, and we expect to see further developments.

*Source: 85 FR 63918

Summary of ‘Before’ and ‘After’ the new H1B rule

Copyright. Judy J. Chang, Esq. All Rights Reserved. 11/04/2020

The information contained in article is provided for general information only and should not serve as a substitute for legal advice.

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