Interim Final Rule on H-1B Visa Classification to Go into Effect

On December 7^th, 2020, an important interim final rule (IFR) from U.S. Department of Homeland Security (DHS) will officially take effect.  This IFR, “Strengthening the H-1B Nonimmigrant Visa Classification Program," was originally published on October 8^th, 2020. According to the DHS, the IFR strengthens H-1B nonimmigrant visa programs, protects U.S. workers, and restores the program’s integrity. The program under the IFR will also better guarantee that H-1B petition approvals occur for only qualified beneficiaries and petitioners.

 Background of H-1B Program

The H-1B program was originally intended to allow employers to fill gaps in their workforce and remain competitive. The DHS, however, felt that the program expanded far beyond that, often to the detriment of U.S. workers. According to the agency, data shows that more than 500,000 H-1B nonimmigrants have already displaced U.S. workers. This, theoretically, has led to reduced wages in the U.S. labor market and the stagnation of wages in certain occupations. The updates to the H-1B visa program were part of a larger Trump Administration goal to protect affected American workers.

Overview of New Rule

Overall, the DHS claims that this rule combats the use of H-1B workers as low-cost replacements for qualified American workers. Accordingly, the new rule:

• narrows the definition of “specialty occupation” by closing what the DHS considered an overbroad definition. The agency removed the words “usually,” “normally required,” and “common to the industry” from the definition;
• establishes that petitioners state that a bachelor’s degree in a specialty or its equivalent is a minimum requirement for hire. This must always be the requirement for the occupation as a whole; and
• enhances the DHS’s ability to enforce compliance through inspections and monitor compliance before, during, and after H1-B petition approval.

Employer Takeaways

When hiring foreign workers, employers need to follow foreign worker classification rules as dictated by the DHS for specific positions.  Consequently, those who employ foreign workers should consult with legal counsel to determine if their hiring policy complies with established rules. Failure to comply with the new IFR could lead to possible hefty fines and lawsuits as dictated by the DHS.