The United States Department of Homeland Security’ (DHS) long-warned interim final rule has finally been brought to light, amending some of the regulations to the H-1B nonimmigrant visa program, in order to “strengthen the visa classification program”.
According to the interim final rule’s changes, the “speciality occupation” definition will be amended to better align with the meaning of the term; therefore there will be added words such as “worksite” and “third-party worksite”, while the purpose of the “United States employer” will also be revised, VisaGuide.World reports.
The new changes will also clarify the way USCIS will determine if there is an “employer-employee relationship” between the petitioner and beneficiary. Limiting the validity period to one year, for third-party placement petitions and providing written explanation when the petition is accepted with an earlier validity period end date than requested, are some of the changes that will also be applied in the H-1B nonimmigrant visa program.
“The primary purpose of these changes is to ensure better that each H-1B nonimmigrant worker (H-1B worker) will be working for a qualified employer in a job that meets the statutory definition of a ‘speciality occupation’”, the statement reads.
According to the statement published by the United States of Homeland, these changes are essential amid the economic crisis caused by the Coronavirus outbreak.
Changes in “Speciality Occupations” Definition
The term “speciality occupation” previously clarified that occupation requires theoretical as well as a practical use of highly specialized knowledge and attainment of bachelor’s or higher degree in the specific field, as a minimum requirement for entry into the occupation in the US.
However, the new changes highlight that the required degree and the duties of the position must be directly related to each other.
The new rule reveals that is no longer enough for employers to show that the degree is “normally,” “commonly,” or “usually” required in order to be considered a speciality occupation. The new amends clarify that a degree is always needed to be qualified under the definition of the so-called “speciality occupation.”
Under the new regulation, a bachelor’s degree is always needed without any exceptions.
According to the USCIS regulations, in order to meet the speciality occupation criteria, the applicants have been required to meet one of the following criteria.
- A bachelor’s or higher degree or it’s equivalent that is normally the minimum entry requirement for the position
- The degree requirement is common to the industry, or in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree
- The employer normally requires a degree or its equivalent for the position, or
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree
Shortening Validity Period of Approved Third-Party Placement Petitions
According to the new rules, the validity period for H-1B petitions, in which the beneficiary will work at a third-party worksite is one year. In comparison to the newly introduced regulation, the prior rule permitted third-party placement petitions to be approved for up to three years.
Through the new changes, employers will not be permitted to request a three-year validity for H-1B petitions in which the beneficiary will be employed at a third-party worksite.
In this regard, last month, the United States Department for Homeland and Security announced that it already sent the proposed amendment to the H-1B visa program to the White House’s Office of Management and Budget for further processing.