- posted: May 01, 2021
From Rithvick Bhagwati, Esq. (Managing Attorney NJ Office)
On May 19, 2021, the Department of Homeland Security (DHS) issued a final rule, reverting the rules regarding the H-1B work visa back to how they were before October 2020. On October 2020, the DHS had issued an interim rule titled “Strengthening the H-1B Nonimmigrant Visa Classification Program”, wherein they revised the regulatory definition and standards of a “specialty occupation” as well as revised the definitions for “worksite”, “third party- worksite”, and “United States Employer”. The interim rule also required additional evidence of work in a specialty occupation, limited the validity period for third party placement petitions to a 1 year maximum, and provided a written explanation when the petition is approved with an earlier validity period than requested. This interim rule was vacated by the U.S. District Court for the Northern District of California, and DHS is issuing this final rule to comply with the Court’s decision.
As a result of the newly issued final rule by the DHS, these revisions and additional changes are removed. Therefore, the statute states once again, when referring to the H-1B Specialty Occupation definition, that a bachelor’s degree is “normally required, “common to the industry”, or that the position requires knowledge “usually associated” with at least a bachelor’s degree or its equivalent. Additionally, the definition of “United States Employer” will remain the same as it was prior to October 2020, and will be as follows: “a person, firm, corporation, contractor, or other association, or organization in the United States”, which, “engages a person to work within the United States” and “has an employer- employee relationship with respect to employees under this part.” The requirements to prove an employer- employee relationship also reverts to what they were pre- October 2020, once again an employer must prove “that it may hire, pay, fire, supervise, or otherwise control the work of any such employee.” As per the final rule issued by the DHS, these original definitions and rules regarding H-1B work visa are once again reinstated.
Vijay Bhagwati, Esq.
Founder and Managing Partner
