The proposal to modernise the H-1B program, released on Friday night, contains provisions on what constitutes a ‘speciality occupation’. This is a mixed bag for H-1B visa holders, a vast majority of whom are from India.
The H-1B non-immigrant visa program allows US employers to employ foreign workers in ‘specialty occupations’. This is currently defined under the immigration laws to mean occupations that require highly specialized knowledge and a bachelor’s or higher degree in the specific specialty, or its equivalent.The DHS has stated that occupation positions would be revised to reduce confusion between the public and adjudicators and to clarify that a position may allow a range of degrees, although there must be a direct relationship between the required degree field(s) and the duties of the position.
Steven Brown, partner with the immigration law firm of Reddy & Neumann explains, “DHS states that the direct relationship requirement should not be construed as requiring a ‘singular field of study’. For example, an electrical engineer could have a degree or electrical engineering or electronics engineering, and USCIS is codifying that multiple degrees could be required. However, if multiple degrees are presented, the petitioner has the burden of establishing how they each relate to the occupation-position.”
Mitch Wexler, partner at Fragomen, a global immigration law firm, adds, “In particular, the proposed rule would clarify that an occupation ‘normally’ requiring a bachelor’s degree doesn’t mean that it must ‘always’ require a bachelor’s degree. The rule would acknowledge that a position may qualify as an H-1B specialty occupation even if the employer accepts degrees in a broad range of specialty fields, provided the fields are related to the duties of the position – an issue that has been subject to significant litigation in the past and continues to be the subject of requests for evidence by the USCIS.”
Speaking to TOI, Cyrus D. Mehta, a New-York based immigration attorney said, “There are some features in the proposed rule that will incentivize the USCIS to issue requests for evidence and potentially deny the H-1B application. A job-position will not be considered a specialty occupation for H-1B purposes if attainment of a general degree, such as business administration or liberal arts, without further specialization, is sufficient to qualify for the position. For instance, if an H-1B petition is filed on behalf of a marketing manager who has a degree in business administration without any specialization in marketing, the H-1B petition may not be approved. The comments to the rule also provide that a petition with a requirement of an engineering degree in any field of engineering for a software developer would not generally satisfy the legal requirements for H-1B classification.”
A significant chunk of H-1B visas are held by Indians working in the technology sector. The proposed rule has wide ranging implications, as they are typically assigned to work at client-sites of their American employer.
In this context, Wexler states that DHS proposes a new regulation that when a H-1B worker is staffed to a third party, the requirements of that third party, and not the sponsoring employer, are most relevant when determining whether the position is a qualifying specialty occupation.
This is a mixed bag. Mehta points out that it would be difficult for the sponsoring employer to obtain such a justification from a client, and this too could result in a barrage of requests for evidence and potential denials of the H-1B application. On the other hand, there will be no need to demonstrate an employer and employee relationship under common law, which was often used by the USCIS to deny visa-applications if the employer could not establish that it controlled the H-1B worker’s employment at a third party site.
Lastly, the proposed rules codify the longstanding practice of USCIS to request contracts and other evidence that a bonafide, non speculative job exists for each H-1B beneficiary.