How Might New Immigration Regulations Effect the H-1B Program?

The past few years have not been simple on the H-1B program.  Now, over the next some months, new regulations nearby immigration to the United States will be existing that will continue to impact H-1B beneficiaries, the companies that hire them, and the lawyers who signify them. 

Next month, December 2019, DHS publicized they will suggest regulation changes that, “Revise the definition of specialty occupation” and “revise the definition of employment and employer-employee relationship.”  They also publicized changes surrounding wage level necessities.

These statements come on the heels of newly declassified USCIS documents that show limit of H-1B visas since 2017 with no basis in regulatory changes.

The bad news is, they may get their monitoring basis for rejecting and issuing RFEs for the H-1B petitions they have already been pointing.  The good news is, we already have a basis of considerate for how to work with these proposed regulations should they be approved, because we have been aggressive these Denials and RFEs for years now, and we have gotten very good at it. 

Specialty Profession Issues

In recent years, the exception has become the refereeing factor when it comes to degree necessities for specialty occupations.  For example, a now-common RFE magnet job, Computer Programmer, commonly needs a minimum of a US bachelor’s degree or higher to be borrowed to that position.  Sometimes employers will hire employees to this location with only an associate degree, so now petitions for these jobs continually face specialty occupation issues.  Borderline occupations that occasionally do not have the bachelor’s degree minimum requirement will need added documentation as to why the job needs 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 errands of the job, and an expert opinion letter.

Employer-Employee Relationship Concerns

Over the past few years, USCIS has been needful H-1B workers that work on projects or at third party sites to have a complete itinerary of the work they will be performance for the entire duration of their H-1B visa.  This has especially impacted IT accessing firms.  If this is the condition, a complete timeline that lays out which projects the H-1B employee will be employed on, where they will be employed, who they will be working for, and how their work will be exact and supervised is essential.

Wage Level Issues

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 profession.  This is not always the situation.  The H-1B program was created largely in part to provide jobs for worldwide students who graduate from US bachelor’s degree programs.  Since these graduates have the skills and knowledge wanted for the job, but not essentially the work knowledge, they will need a high level of management to start, which factors into their initial wage level.  If this is your situation, you must include a complete breakdown of the factors that went into setting the wage level attended by an expert opinion letter that provides examination and veracity to this decision.

Even if these new guideline proposals do not become law, there is no guarantee that USCIS will not merely continue to adjudicate H-1B petitions centered on these guidelines.  If you, or if your employee or client faces one of these situations, it is significant to be prepared.  Recognize the added documentation your case will essential, and be sure to provide an expert opinion letter from the RIGHT type of expert whose credentials USCIS will accept.