USCIS is amending H-1B regulations. The amendments will go into effect 60 days from October 8, 2020.
The Definition of “employer”
a person, firm, corporation, company, or other association or organization in the United States which:
(1) Engages the beneficiary to work within the United States, and has a bona fide, non- speculative job offer for the beneficiary;
(2) Has an employer-employee relationship with respect to employees under this part; and
(3) Has an Internal Revenue Service Tax identification number.
The new regulations replaces the term “Engages a person to work” with “Engages the beneficiary to work.” To be considered an employer the new definition requires a petitioner to demonstrate they have, non-speculative employment for the beneficiary at the time of filing to engage the Beneficiary by the requested start date. One has to wait and see how adjudicators view this new requirement. Will it be necessary to provide evidence of the contracts in place with the initial filing rather than at the RFE stage? Will a case be denied if a contract was signed after the filing of the H-1B Petition? USCIS has clarified in the supplementary information that the requirement to establish non-speculative employment does not equate to a requirement to demonstrate non-speculative daily work assignments through the duration of the requested validity period.
The new regulation no longer includes the term ‘contractor’ and it has added the term ‘company’ neither of these changes appear to have much significance or practical effect on their own.
Most significantly, USCIS has removed the phrase “as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee” from the current definition of “United States employer,” This term was the basis of the IT-Serve litigation that caused USCIS to withdraw its memos on right to control and end-client contracts. The new regulatory definition of “Employer-employee relationship” resurrects the pre-IT-Serve decision USCIS policy of referring to the common law. USCIS will assess the following aspects of the relationship with no single factor being determinative. Does the petitioner supervise the Beneficiary? where does such supervision take place? If supervision is not at the petitioner’s worksite, how does the petitioner maintains supervision? Does the Petitioner have the right to control the work of the beneficiary on a day-to-day basis and to assign projects? Does petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment? Does the petitioner hire, pay, and have the ability to fire the beneficiary? Does the petitioner evaluate the work-product of the beneficiary? Does the petitioner claim beneficiary as an employee for tax purposes? Does the petitioner provide the beneficiary any type of employee benefits? Does the beneficiary use proprietary information of the petitioner in order to perform the duties? Does the beneficiary produces an end-product that is directly linked to the petitioner’s line of business?; and Does the petitioner has the ability to control the manner and means in which the work product of the beneficiary is accomplished?
The new regulations incorporate the same factors listed in the 2010 USCIS memorandum on employer-employee relationship with two exceptions
- The 2010 memorandum stated “Does the petitioner have the right to control the beneficiary on a day-to-day basis if such control is required?” The new regulation omits the phrase, “if such control is required,” forcing petitioners in all cases to establish they have the right to control on a day-to-day basis.
- The regulation omits footnote 6 from the 2010 memorandum that stated the employer-employee relationship “hinges upon the right to control.” USCIS states in the Supplementary information:” the new definitions in 8 CFR 214.2(h)(4)(ii), along with this explanation, will clarify that the right to control is not determinative and will not, in itself, be sufficient to demonstrate an employer-employee relationship, consistent with common law.“
It appears that USCIS is attempting to force employers in all cases to demonstrate the right to control on a day-to-day basis, while at the same time stating demonstration of the right to control, in itself is not sufficient to establish an employer-employee relationship. The Supplementary information states the focus should be on actual control versus the right to control. USCIS states the primary focus should not be on whether the petitioner has the right to do something but whether the Petitioner has the ability to do something or actually does something. For example, if the tools or instrumentalities will be provided by the H-1B beneficiary or end-client, that fact may weigh against a finding that the petitioner will be the employer, even if the Petitioner has the right to provide tools or instrumentalities.
If the H-1B beneficiary possesses an ownership interest in the petitioning organization USCIS will assess if:
(i) Petitioner can hire or fire the beneficiary or set the rules and parameters of the beneficiary’s work.
(ii) Whether and to what extent the petitioner supervises the beneficiary’s work;
(iii) Whether the beneficiary reports to someone higher in the petitioning entity;
(iv) Whether and, if so, to what extent the beneficiary is able to influence the petitioning entity;
(v) Whether the parties intended that the beneficiary be an employee, as expressed in written agreements or contracts; and
(vi) Whether the beneficiary shares in the profits, losses, and liabilities of the organization or entity.
The Definition of a “Specialty Occupation”
The new rule amends the definition of “specialty occupation” to an occupation that requires:
(1) The theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor, such as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, or the arts; and
(2) The attainment of a U.S. bachelor’s degree or higher in a directly related specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States. The required specialized studies must be directly related to the position. A position is not a specialty occupation if attainment of a general degree, such as business administration or liberal arts, without further specialization, is sufficient to qualify for the position. While a position may allow a range of degrees or apply multiple bodies of highly specialized knowledge, each of those qualifying degree fields must be directly related to the proffered position.
The new rule amends the definition of a “specialty occupation” at 8 CFR 214.2(h)(4)(ii) to state there must be a direct relationship between the required degree field(s) and the duties of the position. A position for which a bachelor’s degree in any field is sufficient to qualify for the position, or for which a bachelor’s degree in a wide variety of fields unrelated to the position is sufficient to qualify, would not be considered a specialty occupation. Petitioner’s have to establish the direct relationship between the required degree in a specific specialty (in other words, the degree field(s) that would qualify someone for the position) and the duties of the position. To establish a direct relationship, the petitioner would need to provide information regarding the course(s) of study associated with the required degree, or its equivalent, and the duties of the proffered position, and demonstrate the connection between the course of study and the duties and responsibilities of the position. In cases where the petitioner lists degrees in multiple disparate fields of study as the minimum entry requirement for a position, the petitioner would have to establish how each field of study is in a specific specialty providing “a body of highly specialized knowledge” directly related to the duties and responsibilities of the particular position. The USCIS’s published supplementary information that accompanies the new regulations states a petition with a requirement of an engineering degree in any or all fields of engineering for a position of software developer would not suffice unless the record establishes how each or every field of study within an engineering degree provides a body of highly specialized knowledge directly relating to the duties and responsibilities of the software developer position.
Criteria for specialty occupation position
per the new regulations a position is not a specialty occupation, unless it also satisfies at least one of the following criteria:
(1) A U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent, is the minimum requirement for entry into the particular occupation in which the beneficiary will be employed;
(2) A U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent, is the minimum requirement for entry into parallel positions at similar organizations in the employer’s United States industry;
(3) The employer has an established practice of requiring a U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent, for the position. The petitioner must also establish that the proffered position requires such a directly related specialty degree, or its equivalent, to perform its duties; or
(4) The specific duties of the proffered position are so specialized, complex, or unique that they can only be performed by an individual with a U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent.
The new regulations eliminate the terms “normally,” “common,” and “usually” from existing regulations. The administration intends to have petitioners establish a bachelor’s degree in a specific specialty is always the requirement for entry into the occupation as a whole, the occupational requirement within the relevant industry, the petitioner’s particularized requirement, or because it is so specialized, complex, or unique that it is necessarily required to perform the duties of the specific position. The intent of this regulation appears to be to prevent petitioners from establishing a position is a specialty occupation based on Occupational Outlook Handbook stating the occupation normally, commonly, or usually requires a bachelor’s degree in a specific specialty. This is horrendous because even for a physician OOH only states a degree from medical school is typically required, it does not state a medical degree is always required. One cannot reasonably believe that congress intended to have Petitioner’s prove in every individual H-1B petition for a physician that a medical degree is always required to be a physician or is always required by the petitioning hospital and is always required to perform the duties of the proffered position. The USCIS published supplementary information claims the amendment will reduce the need for RFE’s in the future! If the rare individual can become a physician without a medical degree, then a medical degree is not always required to be a physician. Interestingly, USCIS’s published supplementary information states “ If the occupation requires at least a bachelor’s degree in a specific specialty (e.g., lawyer or doctor) then it necessarily follows that a position in one of those occupations would require a degree and qualify as a specialty occupation”. USCIS does not explain what evidence establishes the occupation of physician always requires a bachelor’s degree in a specific specialty. USCIS states it will continue its practice of consulting DOL’s Occupational Outlook Handbook and other reliable and informative sources submitted by the petitioner, to assist in its determination regarding the minimum entry requirements for positions located within a given occupation. While the OOH says lawyers must have a law degree (although that is not always the case), OOH does not say this about physicians. OOH states Software developers usually have a bachelor’s degree in computer science. As usually requiring a bachelor’s degree in longer sufficient, how is one to convince an adjudicator that no one can ever qualify for a proffered position of Software Developer without a bachelor’s degree in computer science? There is no guidance in the regulations about what evidence is sufficient, an avalanche of RFE’s is guaranteed. It is interesting that USCIS states “None of the revised provisions categorically prevent any particular position from qualifying as a specialty occupation.” While the regulations do not explicitly prevent any particular position from qualifying as a specialty occupation, it may as a practical matter have robbed Petitioner’s for most positions from utilizing the first three criteria, and be left to the subjective views of an adjudicator with no expertise in the occupation determining if he or she thinks a degree in a specific specialty is required to perform the duties of the particular position. We can foresee business for providers of position evaluations, (as most H-1B petitions would need to be armed with one), which may be followed by adjudicators disregarding expert evaluators to deny petitions, to be followed by litigation and then a memorandum or regulation on how to disqualify experts, followed by further litigation! It common within the IT consulting industry for job duties to be drafted poorly. Petitioners may need to start paying more attention to how they draft job duties. One can also expect to see RFEs claiming the job duties provided by Petitioners and or End-clients are not detailed enough even when they are.
The regulations replace the phrase, “To qualify as a specialty occupation,” with the phrase “A proffered position does not meet the definition of specialty occupation unless it also satisfies” prior to setting forth the regulatory criteria. It will no longer be sufficient to meet one of the four regulatory criteria to demonstrate a position qualifies as a specialty occupation.
The regulations replace the word “position” with “occupation,” in the first criterion. so that it sets forth “the minimum requirement for entry into the particular
The new regulations bring back the requirement to submit contracts and work orders by incorporating into the H-1B regulations section on general documentary requirements for H-1B classification, the following :
The petitioner must establish, at the time of filing, that it has actual work in a specialty occupation available for the beneficiary as of the start date of the validity period as requested on the petition. When a beneficiary will be placed at one or more third-party worksites, the petitioner must submit evidence such as contracts, work orders, or other similar corroborating evidence showing that the beneficiary will perform services in a specialty occupation at the third- party worksite(s), and that the petitioner will have an employer-employee relationship with the beneficiary. In accordance with 8 CFR 103.2(b) and paragraph (h)(9) of this section, USCIS may request copies of contracts, work orders, or other similar corroborating evidence on a case-by- case basis in all cases, regardless of where the beneficiary will be placed.
One wonders what the consequence of the above will be when combined with the requirement that petitioners establish the existence of non-speculative employment at the time of filing and the USCIS memorandums on the ability to deny petitions without an RFE if initial documents required by regulation have not been provided. The supplementary information does not confirm that end -client letters are sufficient in themselves, (they will still be generally needed because contracts and work orders seldom describe job duties.) because while it lists a detailed letter from an authorized official at the third-party worksite as an example of other similar evidence that can be provided, it also states:
“..petitioners who regularly place their workers at third-party worksites often submit uncorroborated statements describing the role the H-1B beneficiary will perform at the third- party worksite. Such statements, without additional evidence, are generally insufficient to establish by a preponderance of the evidence that the H-1B beneficiary will actually perform work in a specialty occupation. Moreover, such uncorroborated statements are generally insufficient to establish that the petitioner will have and maintain an employer-employee relationship while the beneficiary works at the third-party worksite
The Supplementary information states contracts must be accompanied by documents similar to work orders and statements of work and similar documents.Contracts have to be signed by an authorized official of the end-client.
In what appears to be a carve-out that satisfies the needs of large multinational IT consulting providers the supplementary information states:
where the beneficiary is placed at a third-party’s worksite, but performs work as part of a team of the petitioner’s employees, including an on-site supervisor employed by the petitioner and who manages the work of the petitioner’s employees, the requirements of the position as established by the petitioner may be determinative. USCIS will make the determination as to whether the requirements of the petitioner or third-party entity are controlling on a case-by-case basis, taking into consideration the totality of the relevant circumstances, as described above.
The regulation allows USCIS to request contractual documents even if the beneficiary works at the Petitioner’s location or from the Beneficiary’s residence.
The Definition of a “worksite”
Worksite means the where the work actually is performed by the H-1B nonimmigrant. A “worksite” will not include any location that would not be considered a “worksite” for Labor Condition (LCA) purposes
In light of the focus on supervision, right to control and location of supervision, when determining employer-employee relationship where possible, it would be advisable to have Beneficiaries work from the employer’s location.
The Definition of a “Third-party worksite”
Third-party worksite means a worksite, other than the beneficiary’s residence in the United States, that is not owned or leased, and not operated, by the petitioner.
COVID-19 has taught both H-1B petitioner’s and end-clients that the majority of work can be performed from a Beneficiary’s residence, for long term projects it may make sense to attempt to convince end-clients to permit work to be performed from the beneficiary’s residence or the petitioner’s location, so that a three-year approval, as opposed to a one-year approval, may be obtained.
The new regulations limit off-site employment to one-year by stating:
H-1B petition in a specialty occupation. The maximum validity period for an approved petition classified under section 101(a)(15)(H)(i)(b) of the Act for an alien in a specialty occupation is 3 years. However, where the beneficiary will be working at a third-party worksite, the maximum validity period for an approved petition is 1 year. In all instances, the approved petition may not exceed the validity period of the labor condition application.
Final the new regulation state that a H-1B petition can be denied of if the end-client fails to corporate with requests made in relation to a site visit.
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