Expected Changes to H-1B Program in 2020
There are many expected changes to the long-standing H-1B program in the new decade. The H-1B visa allows U.S employers to temporarily hire foreign workers in specialty occupations. Specifically, USCIS has four definitions to determine whether a job is considered a specialty occupation. First, the job must generally require a bachelor’s degree or higher as a minimum for entry into the occupation. Second, the job may not explicitly require a bachelor’s degree, but in practice, the job is so complex that only an individual with a degree can adequately perform the job. Thirdly, the job has duties that are so specialized and complex that the requisite background knowledge is usually associated with the attainment of a bachelor’s degree or higher. Lastly, the job is considered a professional position, which means that the employer morally requires a degree or its equivalent for the position. Employers can then prove that their job position should be considered a specialty occupation by meeting one of the four definitions above through objective evidence.
Recently, USCIS has been narrowly interpreting what qualifies as a specialty occupation. It is expected that this narrow interpretation will be published as a governing rule. For example, an internal USCIS memo deemed that computer programmer position cannot be deemed a specialty occupation based on the Occupational Outlook Handbook (OOH) alone. USCIS often refers to the OOH to help determine which degrees are required for certain jobs, but is not controlling when adjudicating H-1B cases. As such, we expect a rule to be discussed and published in 2020 that changes the definition of specialty occupation.
Furthermore, we expect changes on how USCIS views employer – employee relationships. The H-1B visa requires employers to demonstrate an employer – employee relationship while the employee is employed. “USCIS looks at a number of factors to determine whether a valid relationship exists, including whether the petitioner controls when, where, and how the beneficiary performs the job.” H-1B applications that have jobs offsite have been facing a much higher rate of denials over the past few years. As a result, various employers have challenged USCIS’s interpretation of the employer-employee relationship. Specifically, USCIS officers requires that there must be a sufficient level of control over the employee, especially when considering off-site positions. For example, a tradition onsite employment, with typical daily contact and use of the employer’s equipment, will be considered sufficient as an employer-employee relationship. However, an IT company that hires an individual who works offsite and takes assignments from end client company instead of the company that sponsored their H-1B petition would not have an employee-employer relationship. It is likely that this interpretation of the employee-employer relationship will be codified as a rule in 2020.
It is important to the success of your H-1B petition to understand all the upcoming changes to the H-1B program. Here at Zhang & Associates, P.C, we have diligently and carefully kept a finger on the pulse of the immigration field. In fact, a primary reason for our success over the span of more than two decades is that we don’t merely keep track of developments—we stay ahead of the curve, identifying trends first, recalibrating our strategies in response, and understanding the impetus to any changes made in immigration law or regulation.
It is clear to us how important the H-1B visa is to a host of industries and foreign nationals. If you are interested in a case evaluation at no charge, whether you have recently received an RFE on your pending H-1B petition or are contemplating your future H-1B or other nonimmigrant or immigrant visa options, we invite you to start a conversation with us here.
For more information on the H-1B visa, refer to our articles here.
Former U.S. Consular officer, Attorney Sechyi Laiu joined Zhang & Associates, P.C. on June 26, 2017
At Zhang & Associates, P.C., Attorney Laiu specializes on Consular Processing cases and business development. Attorney Laiu also focuses on TN visas, E visas, CBP administrative proceedings (monetary confiscation, deferred inspection), and overseas financial compliance.
Prior to joining Zhang & Associates, P.C., Attorney Laiu worked for the U.S. Department of State as a Chinese and Portuguese speaking diplomat. As a consular-coned officer who served in Vancouver (Canada), Shenyang (P.R. China), and Rio de Janeiro (Brazil), Attorney Laiu processed over 30,000 visa cases and worked in every section of Consular Affairs overseas (Fraud Prevention Unit, Immigrant Visas, Non-Immigrant Visas, and American Citizen Services).
He will use his experience and expertise to deliver the highest quality of service to our clients.
Founded in 1996, Zhang & Associates, P.C. offers legal services to clients worldwide in all aspects of U.S immigration law. We have successfully handled over ten thousand immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, EB-5, PERM, I-485 I-130, H-1B, O, L and J cases. In the past twenty-two years, we have successfully helped over ten thousand clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (firstname.lastname@example.org) for a free evaluation.
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