The Department of Homeland Security (DHS) issued an interim final rule effective December 7, 2020, that revises the regulatory definition of and standards for a “specialty occupation” for
H-1B purposes. The rule:
…amends the definition of a “specialty occupation” at 8 CFR 214.2(h)(4)(ii) to clarify that there must be a direct relationship between the required degree field(s) and the duties of the position. Consistent with existing USCIS policy and practice, 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.
The rule also:
- Adds definitions for “worksite” and “third-party worksite”;
- Revises the definition of “United States employer”;
- Clarifies how U.S. Citizenship and Immigration Services (USCIS) will determine whether there is an “employer-employee relationship” between the petitioner and the beneficiary;
- Requires corroborating evidence of work in a specialty occupation;
- Limits the validity period for third-party placement petitions to a maximum of 1 year;
- Provides a written explanation when the petition is approved with an earlier validity period end date than requested;
- Amends the general itinerary provision to clarify it does not apply to H–1B petitions; and
- Codifies USCIS’ H–1B site visit authority, including the potential consequences of refusing a site visit.
Among other things, the interim rule requires that the petitioner establish, at the time of filing, that it has actual work in a specialty occupation available for the beneficiary as of the start date of the validity period as requested on the petition. In addition, all H-1B petitions for beneficiaries who will be placed at a third-party worksite must submit evidence showing that the beneficiary will be employed in a specialty occupation, and that the petitioner will have an employer-employee relationship with the beneficiary. DHS said the interim final rule will impose new annual costs of almost $25 million for petitioners completing and filing H-1B petitions, with an additional time burden of 30 minutes.
Litigation is likely, according to practitioners. Comments are due by November 9, 2020, on the information collection and by December 7, 2020, on the interim final rule.