DHS is Taking Final Steps for The Publication of a New H-1B Regulation

Posted on Sep 11, 2020 by Jean Louise

The current administration is now taking a big step in its agenda to restrict immigration. The Department of Homeland Security (DHS) is taking the final steps for the publication of new H-1B regulation. It is going to be the first time that this administration’s restrictions on H-1B visas will be officially published under a rule.

This rule, which is probably going to be challenged in court, has three important elements:

  1. The regulation will be published as an “interim final rule”

As an interim rule, the regulation will go into effect immediately without public comment. However, such an interim rule will be more vulnerable to legal challenges. The rule will have to survive the court challenge on the narrow question of whether avoiding public comment was necessary. DHS will need to prove a “good cause” exception to the notice and comment rulemaking under the Administrative Procedure Act. DHS’s pretention that there is an economic emergency may not meet the standard to show “good cause” under the APA because the economy has improved since March and April and is continuing to improve.

  1. A restrictive definition of a “specialty occupation” for H-1B visas

Under this Administration, DHS has often taken the position that a position is not a specialty occupation when the Department of Labor Occupational Outlook Handbook (OOH) states that certain candidates do not need a bachelor’s degree to qualify for the occupation.  From DHS’s standpoint, the language in the OOH like “many computer systems analysts have liberal arts degrees and gained experience elsewhere…” excludes a proffered position from being a specialty occupation because the attainment of a bachelor’s degree is not always a requirement.  The position DHS takes has been successfully challenged in court. A federal judge in D.C. ruled that DHS was wrong in taking that position because it is enough that the OOH also states that a bachelor’s degree in computer or information science is “common.” The judge wrote that “common” should be interpreted as “normally.” The judge added, “the regulatory criterion is not whether such a degree is always required,” as DHS claims.

The rule may also implement a specific specialty requirement for a position to be considered a specialty occupation. DHS has taken the position that a position is a specialty occupation not only if it requires a bachelor’s degree, but also if the degree is in a specific specialty. Based on that reasoning, DHS has denied H-1B petitions where the position could be filled by individuals with degrees in engineering. The rationale being that the field of engineering is a broad category that covers numerous and various specialties.

These assertions, as well, were successfully challenged in court. The judge found that the regulation cannot have a strict requirement that a bachelor’s degree or higher in a specific field be the only way to qualify for employment in the specialty occupation. Indeed, in computer-related professions as well as in new and growing fields like data analytics, for example, the background required usually comes from two distinct majors, computer science and statistics.

It appears that now DHS is trying to take the next step by publishing a new regulation that will provide that a position must “always” require a bachelor’s degree in a specific specialty to be considered a specialty occupation. We will find this out very soon when the rule is published.

  1. The rule might make it more difficult for H-1B professionals to conduct work at third-party customer locations.

The upcoming rule is also likely to take the form of a government regulation that attempts to prevent U.S. companies from contracting with businesses that provide information technology (IT) services and employ foreign nationals on visas.

Since 2018, DHS started denying H-1B petitions under the theory that a contractor did not meet the definition of an employer when an H-1B professional performed work at a client’s site. This position was successfully challenged in court as well. A court found that DHS interpretation of the employer-employee relationship requirement was inconsistent with its regulation, was announced and applied without rulemaking, and could not be enforced.

Here too, it appears that DHS wants to overcome this court’s ruling by drafting a new regulation that will move toward a radical interpretation of who is an employer and that will contradict long-standing definitions that define an employer as the Department of Labor does: an employer-employee relationship exists when it is established that the employer may hire, pay, fire, supervise, or otherwise control the work of the employee. The “or” is important because it establishes that by showing any of the factors above, an employer maintains an employment relationship.

The attorneys at Patel Law Group (PLG) have seen all types of DHS’s challenges to H-1B petitions and have been successful in helping individuals get approvals. Contact our attorneys if you are planning on filing an H-1B petition. PLG attorneys will walk you through any new regulation to maximize your chances of approval.