U.S. Department of Labor (DOL) and U.S. Department of Homeland Security (DHL) has proposed sets of Interim Final Rules governing H-1B visa program and permanent labor certification program's (PERM) prevailing wage system. These will restrict the definition of specialty occupation, limit the duration of approval for petition involving client-site (to 1 yr), and changing the computation method for OES prevailing wage. DHS has published the notice which will be effective in next 60 days, and has invited the member of public or businesses to provide public comments. Based on these comments, it may update this Interim Final Rule. DOL on the other hand has published the Interim Final Rule, the rule effective from today.
DHS has proposed following regulatory changes:
- Amending the Definition of a “Specialty Occupation”
- There must be a direct relationship between the required degree field(s) and the duties of the position. A position for which a bachelor’s degree in any field is sufficient to qualify for the position, or for which a bachelor’s degree in a wide variety of fields unrelated to the position is sufficient to qualify, would not be considered a specialty occupation as it would not require the application of a body of highly specialized knowledge. Similarly, the amended definition clarifies that a position would not qualify as a specialty occupation if attainment of a general degree, without further specialization, is sufficient to qualify for the position.
- For example, a petition with a requirement of an engineering degree in any or all fields of engineering for a position of software developer would not suffice unless the record establishes how each or every field of study within an engineering degree provides a body of highly specialized knowledge directly relating to the duties and responsibilities of the software developer position.
- Amending the Criteria for Specialty Occupation Positions:
- This change means that the petitioner will have to establish that the bachelor’s degree in a specific specialty or its equivalent is a minimum requirement for entry into the occupation in the United States by showing that this is always the requirement for the occupation as a whole, the occupational requirement within the relevant industry, the petitioner’s particularized requirement, or because the position is so specialized, complex, or unique that it is necessarily required to perform the duties of the specific position.
- Defining “Worksite” and “Third Party Worksite
- The physical location where the work is actually performed by the H-1B nonimmigrant. A “worksite” will not include any location that would not be considered a “worksite” for LCA purposes.
- Clarifying the Definition of “United States Employer
- Replacing “contractor” with “company” in regulatory definition. This means the H-1 employer must show the employer-employee relationship. This regulatory changes must have proposed in response to a case where USCIS lost a lawsuit which made them to rescind a long-standing memoranda.
- Change definition of Engaging the Beneficiary to Work to
- “[engage] the beneficiary to work within the United States, and ha[ve] a bona fide, non-speculative job offer for the beneficiary.
- This will make it clear that a petitioner must have non-speculative employment for the beneficiary at the time of filing. At the time of filing, the petitioner must establish that a bona fide job offer exists and that actual work will be available as of the requested start date.
- Clarifying the “Employer-Employee Relationship"
- USCIS will interpret ‘employer-employee relationship’ based on existing common law. Internal Revenue regulations (IRS interprets as being behavioral or financial control (read here and IRS' 20 factors tests based on Section 530 of the Revenue Act of 1978) or other regulations can also provide some guide here.
- USCIS will interpret the term ‘‘employer-employee relationship’’ to be the ‘‘conventional master-servant relationship as understood by common law agency doctrine.’’ That doctrine, as explained by the Supreme Court, requires an evaluation of the hiring party’s right to control the manner and means by which the product is accomplished ‘‘among the other factors’’ relevant to the employer-employee relationship.
- As the common law test contains ‘‘no shorthand formula or magic phrase that can be applied to find the answer, . . . all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.
- Corroborating Evidence of Work in a Specialty Occupation
- Where a beneficiary will be placed at one or more third-party worksites, DHS will require the petitioner to submit evidence such as contracts, work orders, or other similar evidence (such as a detailed letter from an authorized official at the third-party worksite) to establish that the beneficiary will perform services in a specialty occupation at the third-party worksite(s), and that the petitioner will have an employer-employee relationship with the beneficiary.
- Maximum Validity Period for Third-Party Placements to a year at a time
- DHS will set a 1-year maximum validity period for all H-1B petitions in which the beneficiary will be working at a third-party worksite.
- Also require to provide written explanation for certain H-1B approvals such as this as to why it approved for a shorter period.
- Revising the Itinerary Requirement for H-1B Petitions
- DHS will still apply the itinerary requirement for H-1B petitions as well as petitions filed by agents. This means the employer has to indicate the dates and location for each worksite if the worksites involve more than one worksite location.
- DHS will continue Site Visits, and denying a site visit could be the ground for H-1B denial or revocation
- If USCIS is unable to verify facts related to an H-1B petition or to compliance with H-1B petition requirements due to the failure or refusal of the petitioner or third-party to cooperate with a site visit, then such failure or refusal may be grounds for denial or revocation of any H-1B petition for H-1B workers performing services at the location or locations which are a subject of inspection, including any third-party worksites.
Click here for Department of Labor's Interim Final Rule governing the OES prevailing wage methodology which impacts H-1B, H-1B1, E-3 and Prevailing Wage for PERM process
Last updated October 8, 2020, legal alerts from us are forthcoming. Many of these changes were known before and we have handled these lines of questioning or documentary requirements over last 10-15 years! If you have any questions, our attorneys are here to answer your questions! We can be reached by phone at 888-820-4430 or by email at firstname.lastname@example.org. Also sign-up for our next conference call or webinar on this topic.