US: USCIS Issues Final Rule Altering H-1B Program

The US Department of Homeland Security will publish a final rule in the Federal Register to bring changes to foreign work visas, primarily to the H-1B program. he changes will be implemented and will go into effect 30 days after publication. It has to be seen if the Trump government prefers to keep them or drop them.

There is a 460-page final rule while here is the summary in points.

• The Final rule revises the regulatory definition of ‘specialty occupation’ for purposes of qualifying as an H-1B position. The rule clarifies details like the petitioner may accept a range of qualifying degree fields for a position, as long as the fields are directly related to the job duties.
• Codifies the existing deference policy so that if the USCIS is adjudicating an I-129 petition involving the same parties and the same underlying facts, USCIS officers generally should defer to a prior USCIS determination on eligibility.
• Requires the inclusion of the beneficiary’s maintenance of status documents for all employment-based extensions or amendment of stay petitions filed with the USCIS.
• Requires H1B petitioners to prove they have a bona fide position in a specialty occupation available for the requested start date.
• Codifies the authority of the USCIS to conduct site visits and clarifies that refusal to comply with a site visit may result in a petition being denied or revoked.
• For H1B workers staffed to a third party, the rule specifies it is the requirements of that third party, and not the petitioner, that are most relevant when determining whether the position is a specialty occupation.
• Allows certain owners of an H1B petitioning entity to self-sponsor, while setting reasonable parameters around H1B eligibility when the beneficiary owns a controlling interest in the petitioning entity.
• H-1b Cap rules change so that F-1 students seeking the change status to H-1b, have their status and employment authorization extended through 01 April of the relevant fiscal year.
• A ‘Non-profit research organization’ and ‘governmental research organization’ definitions change for purposes of qualifying as an H-1B cap-exempt employer, so more entities qualify as cap-exempt.

The rules like cap-gap rule, deference policy, and the self-petition come as a great help to the visa holders. However, with the final rule being implemented shortly before Trump takes office, it has to be seen how far this will actually make changes.