H-1B reform: Racing the clock, raising the stakes

The driving force to implement reform in the H-1B arena has met a fork in the road. President Biden has promised to reform the H-1B visa process and guarantee that the best and brightest of skilled, educated workers can find a smoother route from university to highly coveted professional occupations. Critics have cited the delay in the promulgation of the new proposed rules, but it should be noted that there were over 1,300 unique comments received by the Department of Homeland Security to the proposed rule.

 The window of real reform is closing rapidly as the Biden Administration tries to push reform through before mid-December because of a statutory requirement that the final H-1B regulations must be published in the Federal Register for 30 days before the regulation becomes final. This means that the published rule must be published on or before Dec. 18^, 2023. This would ensure that the new rule is final before the new president is sworn in on Jan. 20, 2025. Absent an exception like an emergency, the requirement that the rule be published in the Federal Register 30 days before finality is a stringent requirement before a proposed rule becomes final.  

The most consequential impact of the proposed rules

This author's opinion is that while all of the proposed changes are impactful, the most important part of the proposal is how it would be determined that an H-1B applicant possesses the necessary educational background that proves an applicant can fulfill a "specialty occupation" job position. The proposal is not without its drawbacks. For example, TechNet, the Information Technology Industry Council, and the Semiconductor Industry Association have criticized language in the proposal whereby USCIS (United States Citizenship and Immigration Service) would be directed to look to a third-party's requirements for an H-1B beneficiary's position rather than relying upon the petitioner's (employer's) stated requirements.

Redefining "Specialty Occupation"

This proposal is especially troublesome given that the H-1B proposal seeks to redefine the "specialty occupation." Currently, in order for a potential H1-B visa applicant to secure an H1-B job position, the position must be one that is a "special occupation." The present definition in the regulations defines it as the "theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor." Typically, a bachelor's degree or higher (or the equivalent) in the specialty field is the minimum requirement for entry into the occupation. Under the proposed changes, USCIS plans to add language to codify that there must be a direct link between the job duties and the required degree, and that a general degree such as a degree in Business Administration would be insufficient without further specialization.

The importance of eliminating the inclusion of a "directly related" requirement in the criteria for the classification of a job as a specialty occupation cannot be overstated. Michael F. Turansick, Supervisory Policy and Practice Counsel for the American Immigration Lawyers Association has reiterated the association's position that imposing the "directly related" requirement results in unintended consequences. He restates that rather than modernizing H-1B eligibility standards, this proposed limitation would shackle the category to an outdated and unnecessarily restrictive interpretation precisely at a time when our national interest requires that we attract entrepreneurs and innovators in emerging and evolving 21st-century business sectors for which "directly related" degrees may include multiple academic fields that provide a specific body of knowledge. Adding this requirement to H-1B adjudications will impede innovators in their efforts to create multi-functioning, interdisciplinary teams by imposing artificial barriers to their ability to access critical global talent.

A consequence of this proposed rule could prevent foreign nationals with a master's in business from gaining H-1B status and reduce the number of international students enrolling in MBA programs at U.S. universities.

To be clear, the Immigration and Nationality Act (INA) does not explicitly state that a degree must be in a "directly related" specific specialty. More than half (51%) of U.S.-born individuals and 18% of temporary visa holders employed in computer occupations possess degrees other than computer science or electrical engineering, according to a National Foundation American Policy analysis of the 2021 National Survey of College Graduates. Almost half (48%) of chemists possess a degree other than chemistry.

This line of reasoning was set forth in a 2020 decision found in InspectionXpert Corp. v. Cuccinelli, 2020 WL 1062821 (M.D. N.C. March 5, 2020) where a judge rejected the USCIS argument during the Trump administration that it would deny an H-1B petition because the position did not require a degree in a specific subspecialty and an individual with a degree in more than one discipline, such as different types of engineering degrees, could fill it. If too many types of engineering degrees could fill the position, then it may not be considered a "specialty occupation." Thus, a person would not be eligible for an H1-B visa.

Other key changes include the following:

Codifying deference policy: The proposed regulations also seek to codify USCIS's deference policy. Under this policy, officers would be instructed to defer to prior agency determinations in cases with the same underlying facts and parties where there has been no material change in the circumstances or eligibility for the petition and where there is no new material information that would adversely impact eligibility for the petitioner, beneficiary and/or applicant. This policy significantly reduces the workload of visa adjudicators by allowing USCIS officers to extend previously approved beneficiaries of employment-based visas without additional scrutiny.

Amended petitions: The rule would codify and clarify that specific changes in the job location that require a new Labor Condition Application (LCA) are a material change, meaning the employer must file a new or amended petition before the H1B employee can start working at the new location.

Maintenance of status: USCIS proposes adding a new provision that will require that any applicant seeking an extension or amendment would need to submit evidence that they have maintained their status prior to filing the petition. Evidence of maintenance of status would include documents such as W-2s, recent paystubs, tax returns, contracts, work orders and/or quarterly wage reports.

Cap-gap extensions: Employers and university groups have cited measures they supported in the rule. These proposed changes include the reforms extending "cap-gap" protections for F-1 students "when changing to H-1B status," allowing more organizations to qualify as H-1B cap-exempt nonprofit research institutions and greater leeway for H-1B visa holders to become entrepreneurs.

Implementing some of the reforms that appear in the proposal would further the goal of improving the H-1B process.