New H-1B Rule – Tech Industry impact.

DHS/USCIS has promulgated a new H-1B rule. It seeks to redefine “specialty occupation”, employer-employee relationship and utilization of wage levels. You can read the synopsis provided here: https://www.reginfo.gov/public/do/eAgendaViewRule?RIN=1615-AC13&pubId=202004). The new H-1B rule is likely to impact the Tech Industry, because the OOH does not state that a bachelor’s degree is required for some of the more common IT related SOC codes.

For e.g. Software Developers “usually have a bachelor’s degree” as compared to Electrical and Electronics Engineers “must have a bachelor’s degree”. Or “Most database administrators have a bachelor’s degree” as compared to Civil engineers need a bachelor’s degree. The Tech related positions use language that is not as definitive as the Engineer positions.

Additionally, the Tech Industry is most prevalent in third-party (client-site) placement of their H-1B employees. Redefining of employer-employee relationship is therefore expected to impact the Tech Industry more than others. A more definitive analysis can be provided by your immigration legal counsel.

And other occupations where the Occupational Outlook Handbook (OOH) does not clearly state a Bachelor’s degree is required for the occupation.

However, industries other than the Tech Industry are not immune from impact of this new H-1B rule. Their are non-IT related positions that the OOH states “typically need a bachelor’s degree“. Additionally the “DHS will propose . . . requirements designed to ensure employers pay appropriate wages to H-1B visa holders.” I anticipate this will reintroduce the USCIS opinion that an H-1B position that pays at wage level 1 is not considered a specialty occupation.

The new H-1B rule is being promulgated as an “Interim Final Rule”. The rule may take immediate effect upon publication without going through the usual rule-making process. The Administrative Procedure Act (APA) provides that where “the 
agency 
has 
“good 
cause” 
to 
find 
that 
the 
notice‐and‐
comment 
process 
would 
be
 “impracticable, 
unnecessary, 
or 
contrary 
to 
the 
public
 interest.”


Given the two Executive Proclamations issued on April 22, 2020 and June 22, 2020 (as amended), I expect that the same basis for those proclamations will be relied upon by DHS/USCIS as the “good cause” to forego the 
notice‐and‐
comment 
process. This rule is on a fast-track. It is expected to result in the regulation taking effect prior to November 3, 2020.

Any H-1B visa holder that is due to expire within the next year​ should immediately discuss with their legal counsel the potential impact on their ability to renew/extend their H-1B status under the new rule.


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