On October 8, 2020, the U.S. Department of Homeland Security (DHS) published an Interim Final Rule (IFR) that significantly revises the "specialty occupation" H-1B legal standard, among other changes. The regulation is effective December 7, 2020, 60 days after publication. We expect this IFR to be legally challenged.
The DHS regulation applies to H-1B nonimmigrant status holders and their employers. It makes a numbers of changes to existing regulatory requirements and adds new requirements. The regulation does not apply to pending or approved petitions.
Key changes include:
Specialty occupation
Modifies the definition of specialty occupation to make qualification more restrictive
Increases focus on tie between degree field and position duties
Increases focus on whether bachelor’s degree in a closely-related field is indeed required
Note: specialty occupation standard applies to H-1B1 (Chile/Singapore) and E-3 (Australia) classifications
Previously approved petitions may no longer be approved under the new definition
Multi-prong test of U.S. employer and employer–employee relationship
Corroborating evidence of the availability of specialty occupation work from the requested start date
For example, may request contracts or similar evidence of work availability, even for in-house/onsite work
Restrictions on third party placement petitions
Emphasizes that third party placement scenarios may have difficulty demonstrating required employer–employee relationship
One year maximum approval (for third party placement petitions)
Site visits
May be telephonic, electronic, or on site
May occur after filing H-1B petition and before approval
Refusal to comply may result in the denial or revocation of petitions for any H-1B workers at the worksite subject to inspection
The government has announced that it expects increased scrutiny and denials of H-1B petitions under the new regulations. We generally recommend filing petitions as early as possible with the government as USCIS will likely issue an even greater number of requests for evidence (RFEs) for H-1B petitions going forward.
This article is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have any questions regarding this update, or for more information about this topic, please contact any of the attorneys in our Business Immigration Practice Group, or the attorney with whom you normally consult.
