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How Might New Immigration Regulations Impact the H-1B Program
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</h3><h4><i>by <a href=”http://discuss.ilw.com/articles/articles/392260-article-changes-to-the-h-1b-application-process-you-need-to-know-about-by-sheila-danzig/#bio”>
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Sheila Danzig
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<p>
The past few years have not been easy on the H-1B program. Now, over the
next few months, new regulations surrounding immigration to the United
States will be introduced that will continue to impact H-1B beneficiaries,
the employers that hire them, and the lawyers who represent them.
</p>
<p>
Next month, December 2019, DHS announced they will propose regulation
changes that, “Revise the definition of specialty occupation” and “revise
the definition of employment and employer-employee relationship.” They also
announced changes surrounding wage level requirements.
</p>
<p>
These announcements come on the heels of recently declassified USCIS
documents that show restriction of H-1B visas since 2017 with no basis in
regulatory changes.
</p>
<p>
The bad news is, they may get their regulatory basis for rejecting and
issuing RFEs for the H-1B petitions they have already been targeting. The
good news is, we already have a basis of understanding for how to work with
these proposed regulations should they be passed, because we have been
fighting these Denials and RFEs for years now, and we have gotten very good
at it.
</p>
<p>
Specialty Occupation Issues
</p>
<p>
In recent years, the exception has become the adjudicating factor when it
comes to degree requirements for specialty occupations. For example, a
now-common RFE magnet job, Computer Programmer, usually requires a minimum
of a US bachelor’s degree or higher to be hired to that position. Sometimes
employers will hire employees to this position with only an associate
degree, so now petitions for these jobs constantly face specialty
occupation issues. Borderline occupations that sometimes do not have the
bachelor’s degree minimum requirement will need added documentation as to
why the job requires knowledge and skills associated with the attainment of
a bachelor’s degree or higher, including a detailed job description and
breakdown of the duties, tasks, and responsibilities of the job, and an
expert opinion letter.
</p>
<p>
Employer-Employee Relationship Issues
</p>
<p>
Over the past few years, USCIS has been requiring H-1B workers that work on
projects or at third party sites to have a complete itinerary of the work
they will be performing for the entire duration of their H-1B visa. This
has especially impacted IT consulting firms. If this is the situation, a
complete timeline that lays out which projects the H-1B employee will be
working on, where they will be working, who they will be working for, and
how their work will be controlled and supervised is necessary.
</p>
<p>
Wage Level Issues
</p>
<p>
H-1B employees with low wage levels have run into trouble the past few
years for issues largely related to specialty occupation issues. USCIS
often will wrongly associate a low wage level with an entry-level
occupation. This is not always the case. The H-1B program was created
largely in part to provide jobs for international students who graduate
from US bachelor’s degree programs. Since these graduates have the skills
and knowledge needed for the job, but not necessarily the work experience,
they will need a high level of supervision to start, which factors into
their starting wage level. If this is your situation, you must include a
detailed breakdown of the factors that went into setting the wage level
accompanied by an expert opinion letter that provides analysis and veracity
to this decision.
</p>
<p>
Even if these new regulation proposals do not become law, there is no
guarantee that USCIS will not simply continue to adjudicate H-1B petitions
based on these guidelines. If you, or if your employee or client faces one
of these situations, it is important to be prepared. Understand the added
documentation your case will need, and make sure to provide an expert
opinion letter from the RIGHT kind of expert whose credentials USCIS will
accept.
</p>
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About The Author<br/>
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<p><b>Sheila Danzig</b> is the Executive Director of CCI, TheDegreePeople.com, a foreign credentials evaluation agency. For a no-charge analysis of any difficult case, RFE, Denial, or NOID, please go to <a href=”http://www.ccifree.com/” target=”_blank”>http://www.ccifree.com/</a> or call 800.771.4723.</p>
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