Trump's Sweeping H-1b Visa Regulatory Changes
The Trump Administration’s sweeping regulatory changes to the H-1B visa were published last week. Prevailing wage has increased across all occupations and locations; this increase took effect on October 8th. Barring a court injunction, the other changes will take effect on December 7th.
Below are the additional key changes:
Specialty Occupation
The definition of a “specialty occupation” has been amended, and now states that there must be a direct relationship between the required degree field(s) and the duties of the position:
General degrees in engineering, liberal arts, business, etc. without further specialization or explanation are not sufficient to meet specialty occupation.
In cases where the petitioner lists degrees in multiple “disparate” fields of study as the minimum entry requirement for a position, the petitioner must establish how each field of study is in a specific specialty providing “a body of highly specialized knowledge” directly related to the duties and responsibilities of the particular position.
Where a position may allow a range of degrees, and apply multiple bodies of highly specialized knowledge, each of those qualifying degree fields must be directly related to the proffered position.
A bachelor’s degree in a specific specialty or its equivalent must be a minimum requirement for entry into the occupation in the United States by showing that the required degree 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.
Third-Party Worksites
The definition of “worksite” has been amended to “the physical location where the work is actually performed by the H-1B nonimmigrant.”
“Third-party worksite” has been defined as “a worksite, other than the beneficiary’s residence in the United States, that is not owned or leased, and not operated, by the petitioner.”
A 1-year maximum validity period has been set for all H-1B petitions in which the beneficiary will be working at a third-party worksite. This applies to all H-1B petitions where any identified worksite is a third-party worksite, not just the primary worksite.
Employer-Employee Relationship
The definition of “United States Employer” has been amended by:
Striking the word “contractor” from the definition of “United States employer." However, the deletion does not necessarily preclude a contractor from qualifying as a U.S. employer.
Inserting the word “company” in the general definition.
Expanding upon the existing requirements by requiring that an employer must engage the beneficiary to work within the United States and have a bona fide, non-speculative job offer for the beneficiary.
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.
"Employer-employee relationship” has been redefined as the “conventional master-servant relationship as understood by common-law agency doctrine.” USCIS will look at whether the employer actually exercises that right to control.
Petitioners filing third-party worksite petitions must 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 and that the petitioner will have an employer-employee relationship with the beneficiary.
The Department of Homeland Security has announced that it expects approximately one-third of H-1b visa petitions to be denied under the new regulatory scheme.
Stay tuned for further updates!
Need assistance with an H-1b visa or employment-based green card? Contact us today at 415-413-8760 or theteam@huwelaw.com.