The Trump Administration issued two rulings Tuesday that could make it harder to qualify for an H-1B visa and would raise wages for H-1B workers. The changes could impact staffing agencies that employ H-1B visa holders at third-party sites, but most employers who depend on the H-1B program for highly skilled foreign workers should view the rules as the codification of what the USCIS has been doing since 2016.
While we expect legal challenges to at least some of the new requirements, we wanted to provide a breakdown of the new requirements and how they could impact employers.
DHS Interim Final Rule
The DHS announced publication of Interim Final Rule on 10/8/20. The rule will go into effect 60 days after publication. The DHS rule seeks to:
- Amend the definition of “specialty occupation.” The definition of “specialty occupation” is at the core of the H-1B status. The DHS rule amends the definition of a “specialty occupation” to clarify that there must be a direct relationship between the required degree field(s) and the duties of the position.
- Amend the definition to clarify 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. This change removes “normally” from the definition and enforces a stricter requirement that the employer “always requires a degree in a specific specialty”.
- Increase H-1B site visit authority and enforcement. Site visits are important to maintaining the integrity of the H-1B program and in detecting and deterring fraud and noncompliance with H-1B program requirements. According to the interim final rule, “DHS is adding regulations specific to the H-1B program to set forth the scope of on-site inspections and the consequences of a petitioner’s or third party’s refusal or failure to fully cooperate with these inspections.” The regulations make clear that DHS may physically inspect facilities, conduct interviews with its officials, review records related to compliance, and conduct interviews with any other individuals or review of any other records that USCIS may lawfully obtain and that it considers pertinent to verify facts related to the adjudication of the H-1B petition. Failure to comply with the site visit could result in a revocation of the H-1B approval.
Department of Labor Rule
The Department of Labor Interim Final Rule, also being published on Thursday, will take effect immediately on publication. Under the DOL’s rules, H-1B employers of entry-level workers must pay those workers at least the 45th percentile of the salary range, while H-1B employers of “highly skilled workers”, such as those with advanced degrees, must pay those workers at least the 95th percentile of the salary range. In contrast, the current requirements dictate salaries in the 17th percentile and 67th percentile, respectively. H-1B employers should review the H-1B petitions they are currently preparing for filing with the USCIS to ensure minimum salary requirements are met under the new DoL guidelines.
We will continue to monitor any changes, and will work with employers to ensure compliance with the rules. We offer complimentary consultations to employers who need assistance with the H-1B process, or would like to look at alternatives to the H-1B program.
