Immigration

Srinivasa Reddy Kandi: Revised H1B Regulations Clarifications on Specialty Occupations, Petition Requirements, and Flexibility for Employers

February, 12, 2025-04:07

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Revised H1B Regulations Clarifications on Specialty Occupations, Petition Requirements, and Flexibility for Employers:

Revises the definition of specialty occupation to determine eligibility for H1B positions. It specifies that a role will not qualify for H1B status if it only requires a general degree, such as business administration, without any specific focus. Additionally, if the degree requirement is overly broad, such as one that could be satisfied by any engineering degree across various engineering disciplines, it typically will not meet H1B criteria. On the other hand, the regulation allows a Petitioner to specify multiple unrelated fields of study as the minimum qualifications for a position, provided that the Petitioner can demonstrate how these diverse fields are relevant to the job responsibilities.

It clarifies that in defining a specialty occupation as one that generally necessitates a bachelor's degree in a specific area, the term "generally" does not imply "always." The regulation modifies the previous four-prong analysis used to assess whether a position qualifies as a specialty occupation, reducing it to a three-prong analysis.

It formalizes several policies, including the requirement to submit an H1B amendment in most cases where the beneficiary is relocating to a new work site, along with other policies related to the temporary placement of H1B workers, as outlined in current U.S. Department of Labor (DOL) regulations. Furthermore, it codifies and expands the existing deference policy to apply to all nonimmigrants utilizing form I-129, where the petition involves the same entities and the same material facts. Petitions and applications must now include proof of status maintenance when seeking to extend or modify the beneficiary's stay.

The requirement for an itinerary in H1B and H-2 petitions has been removed. H1B petitions can be approved or have their requested validity period extended if USCIS determines the petition is approvable after the original validity period has expired. This situation may arise if USCIS finds the petition approvable following a successful motion to reopen, motion to reconsider, or appeal.

The new regulations offer increased flexibility for employers seeking cap-exempt status or exemption from the H1B cap, provided specific conditions are satisfied. For F-1 students whose H1B registration is selected in the lottery, the proposed changes would significantly enhance cap-gap benefits associated with a legitimate H1B petition. Instead of concluding on October 1, the cap-gap benefit would now extend until April 1 of the following year or until the start date of the approved H1B petition, whichever comes first. The language has been updated to allow greater flexibility concerning the requested start date for H1B cap cases.

Significant modifications are proposed for the H1B registration process to effectively minimize fraud and abuse while enhancing fairness within the system. A key change involves limiting each foreign national to a single entry in the lottery, irrespective of the number of jobs offers they may receive. Additionally, to be eligible for the H1B lottery, individuals must possess a valid passport. The proposed regulation would formalize the USCIS's authority to request contracts, work orders, and related documentation to verify the contractual relationship among all parties, outline the terms and conditions of the beneficiary's employment, and establish the minimum educational qualifications required for the role.

The definition of a U.S. employer will be revised, facilitating the sponsorship of foreign nationals for H1B positions by companies they own. Furthermore, if a petitioner is more than 50% owned by the H1B worker, the beneficiary will be allowed to engage in activities directly related to owning and managing the business, including non-specialty occupation tasks, provided that over half of their working hours are dedicated to specialty occupation duties. Petitions will be restricted to an initial validity period of 18 months, with the first extension also limited to 18 months. Subsequent extensions may be granted in increments of up to three years, following standard procedures.

It will be clarified that USCIS inspections can occur at the petitioner's office or the beneficiary's work location, including third-party sites. The USCIS retains the right to interview H1B workers, even in the absence of the employer or their representative. Should the USCIS be denied access to any work site during an inspection or be obstructed from interviewing an H1B worker, it may lead to the denial or revocation of the H1B petition.

Srinivasa Reddy Kandi is an Immigration policies researcher and immigration laws analyst.
Kandi Srinivasa Reddy, Srinivasa Reddy Kandi, #KandiSrinivasaReddy, #SrinivasaReddyKandi
Disclaimer: The information presented here is general in nature and might not be applicable in any given situation. It should not be interpreted as legal advice or taken for granted that it is always current.