Possible new H-1B Regulations to Limit H-1Bs

It appears that the current administration will soon have USCIS issue a new regulation regarding H-1Bs.  There are three elements of the new regulation that are the most significant: 

1) The regulation will be published as an “interim final rule,” which would allow it to go into effect immediately without public input but also makes the rule more vulnerable to legal challenge;

2) The regulation will impose a new, restrictive definition of a “specialty occupation” for H-1B visa holders; and

3) The rule will make it more difficult for H-1B professionals to conduct work at third-party customer locations. 

The first part is making it an “interim” final rule.  The purpose for this is that it allows the rule to go into effect BEFORE comments are received, meaning that it will go into effect immediately upon being published.  The only real silver lining is that this also makes it more susceptible to challenge in the courts as the administration would have to justify skipping public comment (while the argument is it is not skipping it, just allowing the rule to go into effect first, in my mind it is the same as skipping public comment). 

The second part, the new definition of “specialty occupation” was not spelled out in the summary provided to the news sources.  However, most likely, it will be in line with the recent court cases that USICS lost in which it tried to limit the scope of specialty occupation to only occupations that ALWAYS require a bachelors degree, as opposed to those that USUALLY require a bachelors degree.  In addition the administration has also tried to limit H-1Bs to positions that only require a specific degree, as opposed to several degrees.  There are two situations that this comes into play:  First, when a so called “general” degree is required when there are specialty degrees in that area (for example, requiring an engineering degree as opposed to a mechanical engineering degree); The second is if the position could be filled by someone with, for example, a degree in Computer Science or Information technology.  USCIS has tried to limit both types by saying that they are not specialty occupations (but they have lost in Court in all those cases). 

Lastly, USCIS will most likely be trying to limit placement of H-1B employees of IT firms at other locations, as those have been the big cases in the news with H-1B violations.  However this could affect more than just IT companies, depending on the exact regulation.  USCIS has, in the past, tried to get itineraries and firm contracts for the entire period of the H-1B, which can be difficult for some companies that have the need for the person, but they are working on various contracts, etc. as needed.  USCIS may not accept them if the person is not specifically mentioned (something they attempted to do on some occasions as well). 

We will have to see what the final rule states, but it seems as though the current administration is going to try to ensure that the H-1B program has limited use in the near future.  We will update you as we learn more.