Strengthening the H-1B Nonimmigrant Visa Classification Program” Rule Proposed by DHS targets H-1B process, Could Possibly Go into Effect Soon

Strengthening the H-1B Nonimmigrant Visa Classification Program” Rule Proposed by DHS targets H-1B process, Could Possibly Go into Effect Soon

Posted by: Park Evaluations

By: Rachel Horner

Every year, in the Spring and Fall, all federal agencies are required to submit a regulatory agenda, which lists each regulatory action the agency expects to work on within the next 12 months. It is then published in the Unified Agenda of Regulatory and Deregulatory Actions. The latest Agenda, published in Spring 2020 (specifically June 30), contains a proposed rule from the DHS relevant specifically to those looking to arrive to the United States on an H-1B visa. Entitled the “Strengthening the H-1B Nonimmigrant Visa Classification Program,” the proposal was initially set to be reviewed as a proposed rule first in December 2019, but was then moved to December 2020. However, DHS recently sent this item for OMB (Office of Management and Budget) review as an interim final rule on September 3. This deserves attention from law firms and attorneys because, in comparison to a proposed rule, which must go through a lengthy period of review, an interim rule can go into effect immediately without a pre-publication notice and comment period. Therefore, the eligibility of candidates for H-1B letters could significantly shrink sooner than later.

According to DHS’ statement of need, the “Strengthening the H-1B Nonimmigrant Visa Classification Program” was created to “ensure that H-1B visas are awarded only to individuals who will be working in a job which meets the statutory definition of specialty occupation. In addition, these changes are intended to ensure that the H-1B program supplements the U.S. workforce and strengthens U.S. worker protections.” Specifically, these changes will allow USCIS to formalize certain policies they currently use to issue RFEs and denials of H-1B petitions. According to DHS’ abstract, they aim to

  1. “Revise the definition of specialty occupation to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program.“

In other words, they are looking to redefine what kinds of positions constitute a specialty occupation. Specifically, even further evidence will be placed on how well a position’s chosen degree requirement aligns with the role’s duties and responsibilities, as well as how appropriate the knowledge gained during a candidate’s degree is for that particular position.

  1. “Revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages.”

The issue of employer-employee relationship would be more closely scrutinized. This would see the return of the strict documentation requirements and third-party worksite regulations that had been relaxed in the preceding months following legal action against USCIS, thereby harkening back to the much stricter definition of what comprises a valid employer-employee relationship.

  1. “Propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.”

DHS is looking to restructure the way in which employees are issued their respective wages so that they do not harm pay for American workers, i.e., preventing outsourcers from hiring workers at a lower salary than that of their American counterpart.

By formally establishing these policies through the rulemaking process, DHS will make it harder for individual employers to challenge denials in federal court. We have already seen the rate at which H-1B visas are challenged by USCIS increase throughout the years. For example, RFEs for H-1B visas have gone up from 6% in the fiscal year of 2015, to 24% in the third quarter of 2019. These numbers will continue to increase if rules tightening H-1B guidelines, such as the one proposed by DHS, are put into law, since promulgating review processes that produce these higher denial rates will leave fewer opportunities for legal challenge. Specifically, petitioners will no longer be able to argue that denials of applications are a violation of the Administrative Procedures Act (APA), which is commonly used to challenge USCIS decisions. The rule could go into effect at the end of the year or sooner, and, added difficulty notwithstanding, legal opposition can likely be expected. Regardless, if enacted, it will shift the way attorneys, employers, and employees go about the H-1B process.