[Federal Register Volume 85, Number 196 (Thursday, October 8, 2020)]
[Rules and Regulations]
[Pages 63918-63965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22347]
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Vol. 85
Thursday,
No. 196
October 8, 2020
Part VIII
Department of Homeland Security
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8 CFR Part 214
Strengthening the H-1B Nonimmigrant Visa Classification Program;
Interim Final Rule
Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 /
Rules and Regulations
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 214
[CIS No. 2658-20 DHS Docket No. USCIS-2020-0018]
RIN 1615-AC13
Strengthening the H-1B Nonimmigrant Visa Classification Program
AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security.
ACTION: Interim final rule (IFR) with request for comments.
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SUMMARY: The Department of Homeland Security (DHS or the Department),
is amending certain DHS regulations governing the H-1B nonimmigrant
visa program. Specifically, DHS is: Revising the regulatory definition
of and standards for a ``specialty occupation'' to better align with
the statutory definition of the term; adding definitions for
``worksite'' and ``third-party worksite''; revising the definition of
``United States employer''; clarifying how U.S. Citizenship and
Immigration Services (USCIS) will determine whether there is an
``employer-employee relationship'' between the petitioner and the
beneficiary; requiring corroborating evidence of work in a specialty
occupation; limiting the validity period for third-party placement
petitions to a maximum of 1 year; providing a written explanation when
the petition is approved with an earlier validity period end date than
requested; amending the general itinerary provision to clarify it does
not apply to H-1B petitions; and codifying USCIS' H-1B site visit
authority, including the potential consequences of refusing a site
visit. The primary purpose of these changes is to better ensure that
each H-1B nonimmigrant worker (H-1B worker) will be working for a
qualified employer in a job that meets the statutory definition of a
``specialty occupation.'' These changes are urgently necessary to
strengthen the integrity of the H-1B program during the economic crisis
caused by the COVID-19 public health emergency to more effectively
ensure that the employment of H-1B workers will not have an adverse
impact on the wages and working conditions of similarly employed U.S.
workers. In addition, in strengthening the integrity of the H-1B
program, these changes will aid the program in functioning more
effectively and efficiently.
DATES: This interim final rule is effective on December 7, 2020.
Written comments must be submitted on this interim final rule on or
before December 7, 2020. Comments on the collection of information (see
Paperwork Reduction Act section) must be received on or before November
9, 2020. Comments on both the interim final rule and the collection of
information received on or before November 9, 2020 will be considered
by DHS and USCIS. Only comments on the interim final rule received
between November 9, 2020 and December 7, 2020 will be considered by DHS
and USCIS. Note: Comments received after November 9, 2020 only on the
information collection will not be considered by DHS and USCIS.
ADDRESSES: You may submit comments on the entirety of this interim
final rule package, identified by DHS Docket No. USCIS-2020-0018,
through the Federal eRulemaking Portal: http://www.regulations.gov.
Follow the website instructions for submitting comments. Comments
submitted in a manner other than the one listed above, including emails
or letters sent to DHS or USCIS officials, will not be considered
comments on the interim final rule and may not receive a response from
DHS. Please note that DHS and USCIS cannot accept any comments that are
hand-delivered or couriered. In addition, USCIS cannot accept comments
contained on any form of digital media storage devices, such as CDs/
DVDs and USB drives. Due to COVID-19, USCIS is also not accepting
mailed comments at this time. If you cannot submit your comment by
using http://www.regulations.gov, please contact Samantha Deshommes,
Chief, Regulatory Coordination Division, Office of Policy and Strategy,
U.S. Citizenship and Immigration Services, Department of Homeland
Security, by telephone at 202-272-8377 for alternate instructions.
FOR FURTHER INFORMATION CONTACT: Charles L. Nimick, Chief, Business and
Foreign Workers Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
20 Massachusetts Ave. NW, Suite 1100, Washington, DC 20529-2120.
Telephone Number (202) 272-8377 (not a toll-free call). Individuals
with hearing or speech impairments may access the telephone numbers
above via TTY by calling the toll-free Federal Information Relay
Service at 1-877-889-5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
I. Table of Contents
II. Public Participation
III. Executive Summary
A. Purpose and Summary of the Regulatory Action
B. Legal Authority
C. Summary of Costs and Benefits
IV. Background
A. History and Purpose of the H-1B Visa Program
B. Implementation of this Interim Final Rule
V. Discussion of the Provisions to Strengthen the H-1B Program
A. Amending the Definition and Criteria for a ``Specialty
Occupation''
1. Amending the Definition of a ``Specialty Occupation''
2. Amending the Criteria for Specialty Occupation Positions
B. Defining ``Worksite'' and ``Third Party Worksite''
C. Clarifying the Definition of ``United States Employer''
1. Replacing ``contractor'' With ``company''
2. Engaging the Beneficiary To Work
3. Clarifying the ``Employer-Employee Relationship''
D. Corroborating Evidence of Work in a Specialty Occupation
E. Maximum Validity Period for Third-Party Placements
F. Written Explanation for Certain H-1B Approvals
G. Revising the Itinerary Requirement for H-1B Petitions
H. Site Visits
I. Severability
VI. Statutory and Regulatory Requirements
A. Administrative Procedure Act
B. Executive Orders 12866 (Regulatory Planning and Review),
Executive Order 13563 (Improving Regulation and Regulatory Review),
and Executive Order 13771 (Reducing Regulation and Controlling
Regulatory Costs)
1. Summary of Economic Impacts
2. Provisions of the IFR with Economic Impacts
3. Population
i. Historical Population of H-1B Specialty Occupation Worker
Program
ii. Population Affected by the Rule
4. Costs and Cost Savings of Regulatory Changes to Petitioners
i. Estimated Wage by Type of Filers
ii. Baseline Estimate of Current Costs
iii. Detailed Economic Effects of Each Provision in the IFR
a. Revising the Regulatory Definition and Standards for
Specialty Occupation so They Align More Closely With the Statutory
Definition of the Term
1. Additional Costs Due to Changes in Form I-129 for H-1B
Petitions
b. Requiring Corroborating Evidence of Work in a Specialty
Occupation
1. Costs of Submitting Contracts, Work Orders, or Similar
Evidence Establishing Specialty Occupation and Employer-Employee
Relationship
c. Codifying in Regulations Existing Authority To Conduct Site
Visits and Other Compliance Reviews and Clarifying Consequences for
Failure To Allow a Site Visit
1. Cost of Worksite Inspections
d. Eliminating the General Itinerary Requirement for H-1B
Petitions
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1. Cost Savings of Itinerary Requirement Exemption
e. Limiting Maximum Validity Period for Third-Party Placement
1. Costs of Requesting Authorization To Continue H-1B Employment
f. Familiarization Cost
5. Total Estimated and Discounted Net Costs of Regulatory
Changes to Petitioners
6. Costs to the Federal Government
7. Benefits of the Regulatory Changes
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Congressional Review Act
F. Executive Order 13132 (Federalism)
G. Executive Order 12988 (Civil Justice Reform)
H. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
I. National Environmental Policy Act
J. Paperwork Reduction Act
1. USCIS Form I-129H1
2. USCIS H-1B Registration Tool
K. Signature
II. Public Participation
DHS invites all interested parties to participate in this
rulemaking by submitting written data, views, comments, and arguments
on all aspects of this interim final rule. DHS also invites comments
that relate to the economic, environmental, or federalism effects that
might result from this interim final rule. Comments must be submitted
in English, or an English translation must be provided. Comments that
will provide the most assistance to DHS in implementing these changes
will: Reference a specific portion of the interim final rule; explain
the reason for any recommended change; and include data, information,
or authority that supports such a recommended change. Comments
submitted in a manner other than those listed in the ADDRESSES section,
including emails or letters sent to DHS or USCIS officials, will not be
considered comments on the interim final rule. Please note that DHS and
USCIS cannot accept any comments that are hand delivered or couriered.
In addition, USCIS cannot accept mailed comments contained on any form
of digital media storage devices, such as CDs/DVDs and USB drives.
Instructions: If you submit a comment, you must include the agency
name (U.S. Citizenship and Immigration Services) and the DHS Docket No.
USCIS-2020-0018 for this rulemaking. Regardless of the method used for
submitting comments or material, all submissions will be posted,
without change, to the Federal eRulemaking Portal at http://www.regulations.gov, and will include any personal information you
provide. Therefore, submitting this information makes it public. You
may wish to consider limiting the amount of personal information that
you provide in any voluntary public comment submission you make to DHS.
DHS may withhold information provided in comments from public viewing
that it determines may impact the privacy of an individual or is
offensive. For additional information, please read the Privacy and
Security Notice available at http://www.regulations.gov.
Docket: For access to the docket and to read background documents
or comments received, go to http://www.regulations.gov, referencing DHS
Docket No. USCIS-2020-0018. You may also sign up for email alerts on
the online docket to be notified when comments are posted or a final
rule is published.
III. Executive Summary
A. Purpose and Summary of the Regulatory Action
Congressional intent behind creating the H-1B program was, in part,
to help U.S. employers fill labor shortages in positions requiring
highly skilled or educated workers using temporary workers.\1\ A key
goal of the program at its inception was to help U.S. employers obtain
the temporary employees they need to meet their business needs.\2\ To
address legitimate countervailing concerns of the adverse impact
foreign workers could have on U.S. workers, Congress put in place a
number of measures intended to protect U.S. workers to ensure that H-1B
workers would not adversely affect them. Immigration and Nationality
Act (INA) section 212(n) and (p); 8 U.S.C. 1182(n) and (p). However,
over time, legitimate concerns have emerged that indicate that the H-1B
program is not functioning as originally envisioned and that U.S.
workers are being adversely affected. On April 18, 2017, the President
of the United States issued Executive Order (E.O.) 13788, Buy American
and Hire American, instructing DHS to ``propose new rules and issue new
guidance, to supersede or revise previous rules and guidance if
appropriate, to protect the interests of U.S. workers in the
administration of our immigration system.'' \3\ E.O. 13788 specifically
directed DHS and other agencies to ``suggest reforms to help ensure
that H-1B visas are awarded to the most-skilled or highest-paid
petition beneficiaries.'' \4\
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\1\ See H.R. Rep. 101-723(I) (1990), as reprinted in 1990
U.S.C.C.A.N. 6710, 6721 (stating ``The U.S. labor market is now
faced with two problems that immigration policy can help to correct.
The first is the need of American business for highly skilled,
specially trained personnel to fill increasingly sophisticated jobs
for which domestic personnel cannot be found and the need for other
workers to meet specific labor shortages.'').
\2\ Bipartisan Policy Council, Immigration in Two Acts, Nov.
2015, at 7, https://bipartisanpolicy.org/wp-content/uploads/2019/03/BPC-Immigration-Legislation-Brief.pdf, citing 1990 U.S.C.C.A.N.
supra at 6721 (stating ``At the time [1990], members of Congress
were also concerned about U.S. competitiveness in the global economy
and sought to use legal immigration as a tool in a larger economic
plan, stating that ``it is unlikely that enough U.S. workers will be
trained quickly enough to meet legitimate employment needs, and
immigration can and should be incorporated into an overall strategy
that promotes the creation of the type of workforce needed in an
increasingly global economy.'').
\3\ See Executive Order 13788, Buy American and Hire American,
82 FR 18837, sec. 5 (Apr. 18, 2017).
\4\ See id. at sec. 5(b).
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In response to the directives of E.O. 13788, DHS undertook a
comprehensive review of all rules and policies regarding nonimmigrant
visa classifications for temporary foreign workers, including the H-1B
visa program. Although the H-1B program was intended to allow employers
to fill gaps in their workforce and remain competitive in the global
economy, it has expanded far beyond that, often to the detriment of
U.S. workers. Data shows that the H-1B program has been used to
displace U.S. workers and has led to reduced wages in a number of
industries in the U.S. labor market.\5\ The economic crisis caused by
the COVID-19 public health emergency has compounded those detrimental
effects.
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\5\ See e.g., Ron Hira and Bharath Gopalaswamy, Atlantic
Council, Reforming US' High-Skilled Guestworker Program (2019),
available at https://www.atlanticcouncil.org/in-depth-research-reports/report/reforming-us-high-skilled-immigration-program/.
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The President of the United States addressed those harms in
Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S.
Labor Market Following the Coronavirus Outbreak and directed DHS to
pursue rulemaking that ensures that U.S. workers are not disadvantaged
by H-1B workers.\6\ This interim final rule is consistent not only with
that directive, but also with the aims of the Presidential Proclamation
Suspension of Entry of Immigrants and Nonimmigrants Who Present a Risk
to the United States Labor During the Economic Recovery Following the
2019 Novel Coronavirus Outbreak.\7\ Section 5
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of Proclamation 10052 directs the Secretary of DHS to, ``as soon as
practicable, and consistent with applicable law, consider promulgating
regulations or take other appropriate action . . . ensuring that the
presence in the United States of H-1B nonimmigrants does not
disadvantage United States workers.'' In addition, this rule will
further the policy objective of E.O. 13927, Accelerating the Nation's
Economic Recovery from the COVID-19 Emergency by Expediting
Infrastructure Investments and Other Activities.\8\
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\6\ Proclamation 10014 of April 22, 2020, Suspension of Entry of
Immigrants Who Present a Risk to the United States Labor Market
During the Economic Recovery Following the 2019 Novel Coronavirus
Outbreak, 85 FR 23441 (Apr. 27, 2020).
\7\ Proclamation 10052 of June 22, 2020, Suspension of Entry of
Immigrants and Nonimmigrants Who Present a Risk to the United States
Labor Market During the Economic Recovery Following the 2019 Novel
Coronavirus Outbreak, 85 FR 38263 (Jun. 25, 2020).
\8\ See Executive Order 13927, Accelerating the Nation's
Economic Recovery from the COVID-19 Emergency by Expediting
Infrastructure Investments and Other Activities, 85 FR 35165, sec. 2
(Jun. 9, 2020) (ordering that ``agencies should take all reasonable
measures to . . . speed other actions . . . that will strengthen the
economy and return Americans to work'').
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Consistent with Congressional intent of the H-1B program, the Buy
American and Hire American E.O. 13788, Presidential Proclamations 10014
and 10052, and to ensure that U.S. workers are protected under U.S.
immigration laws, DHS is proposing a number of revisions and
clarifications, which are detailed below. As noted above, these changes
are urgently needed to strengthen the H-1B program during the economic
crisis caused by the COVID-19 public health emergency to more
effectively ensure that the employment of H-1B workers will not
negatively affect the wages and working conditions of similarly
employed U.S. workers.
By reforming key aspects of the H-1B nonimmigrant visa program,
this rule will improve program integrity and better ensure that only
petitioners who meet the statutory criteria for the H-1B classification
are able to employ H-1B workers who are qualified for the
classification. This, in turn, will protect jobs of U.S. workers as a
part of responding to the national emergency, and facilitate the
Nation's economic recovery.
B. Legal Authority
The Secretary of Homeland Security's authority for these regulatory
amendments is found in various sections of the INA, 8 U.S.C. 1101 et
seq., and the Homeland Security Act of 2002 (HSA), Public Law 107-296,
116 Stat. 2135, 6 U.S.C. 101 et seq. General authority for issuing this
rule is found in section 103(a) of the INA, 8 U.S.C. 1103(a), which
authorizes the Secretary to administer and enforce the immigration and
nationality laws, as well as section 102 of the HSA, 6 U.S.C. 112,
which vests all of the functions of DHS in the Secretary and authorizes
the Secretary to issue regulations. See also 6 U.S.C. 202(4) (charging
the Secretary with ``[e]stablishing and administering rules . . .
governing the granting of visas or other forms of permission . . . to
enter the United States to individuals who are not a citizen or an
alien lawfully admitted for permanent residence in the United
States''). Further authority for these regulatory amendments is found
in:
Section 101(a)(15)(H)(i)(b) of the INA, 8 U.S.C.
1101(a)(15)(H)(i)(b), which classifies as nonimmigrants aliens coming
temporarily to the United States to perform services in a specialty
occupation or as a fashion model with distinguished merit and ability;
Section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), which
authorizes the Secretary to prescribe by regulation the terms and
conditions of the admission of nonimmigrants;
Section 214(c) of the INA, 8 U.S.C. 1184(c), which, inter
alia, authorizes the Secretary to prescribe how an importing employer
may petition for an H nonimmigrant worker and the information that an
importing employer must provide in the petition;
Section 214(i) of the INA, 8 U.S.C. 1184(i), which defines
the term ``specialty occupation;'' and
Section 287(b) of the INA, 8 U.S.C. 1357(b), which
authorizes USCIS to administer oaths and to take and consider evidence
concerning any matter which is material and relevant to the
administration and enforcement of the INA.
Finally, under section 101 of HSA, 6 U.S.C. 111(b)(1)(F), a primary
mission of the Department is to ``ensure that the overall economic
security of the United States is not diminished by efforts, activities,
and programs aimed at securing the homeland.''
C. Summary of Costs and Benefits
This interim final rule will impose new annual costs of $24,949,861
for petitioners completing and filing H-1B petitions \9\ with an
additional time burden of 30 minutes. The changes in the H-1B petition,
resulting from this interim final rule, result in additional time to
complete and file the petition as compared to the time burden to
complete the current form. By reducing uncertainty and confusion
surrounding disparities between the statute and the regulations, this
rule will better ensure that approvals are only granted for positions
adhering more closely to the statutory definition. This rule will also
result in more complete petitions and allow for more consistent and
efficient adjudication decisions.
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\9\ DHS estimates the costs and benefits of this rule using the
newly published U.S. Citizenship and Immigration Services Fee
Schedule and Changes to Certain Other Immigration Benefit Request
Requirements, final rule (``Fee Schedule Final Rule''), and
associated form changes, as the baseline. 85 FR 46788 (Aug. 3,
2020). The Fee Schedule Final Rule was scheduled to go into effect
on October 2, 2020. On September 29, 2020, the U.S. District Court
for the Northern District of California issued a nationwide
injunction, which prevents DHS from implementing the Fee Schedule
Final Rule. See, Immigrant Legal Resource Center v. Wolf, No. 4:20-
cv-5883 (N.D. Cal. Sept. 29, 2020). DHS intends to vigorously defend
this lawsuit and is not changing the baseline for this rule as a
result of the litigation. Should DHS not prevail in the Fee Schedule
Final Rule litigation, this rule may reflect overstated transfers,
costs, and opportunity costs associated with the filing of the Form
I-129.
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DHS estimates $17,963,871 in annual costs to petitioners to submit
contractual documents, work orders, or similar evidence required by
this rule to establish an employer-employee relationship and qualifying
employment. The petitioner must establish, at the time of filing, that
it has actual work in a specialty occupation available for the
beneficiary as of the start date of the validity period as requested on
the petition. In addition, all H-1B petitions for beneficiaries who
will be placed at a third-party worksite must submit evidence showing
that the beneficiary will be employed in a specialty occupation, and
that the petitioner will have an employer-employee relationship with
the beneficiary.
DHS estimates $1,042,702 for the total annual opportunity cost of
time for worksite inspections of H-1B petitions. This interim final
rule is codifying DHS' existing authority to conduct site visits and
other compliance reviews and clarifying consequences for failure to
allow a site visit. Conducting on-site inspections and other compliance
reviews is critical to detecting and deterring fraud and noncompliance.
Failure or refusal of the petitioner or third-party worksite parties to
cooperate in a site visit or verify facts may be grounds for denial or
revocation of any H-1B petition for workers performing services at
locations which are a subject of inspection, including any third-party
worksites.
DHS estimates cost savings of $4,490,968 annually in eliminating
the general itinerary requirement for H-1B petitions. Relative to the
current regulation, this provision reduces the cost for petitioners who
file on behalf of beneficiaries performing services in more than one
location and submit itineraries.
While the maximum validity period for a specialty occupation worker
is
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currently 3 years, this interim final rule will limit the maximum
validity period to 1 year for workers placed at third-party worksites.
DHS estimates costs of $0 in FY 2021, $376,747,030 in FY 2022,
$502,330,510 for each of FY 2023 through FY 2027, and $349,127,070 for
each of FY 2028 through FY 2030, for the increasing number of Form I-
129H1 petitions to request authorization to continue H-1B employment
for workers placed at third-party worksites. DHS will have greater
oversight in such cases, which are most likely to involve
noncompliance, fraud, or abuse, thereby strengthening the H-1B program.
DHS estimates a one-time total regulation familiarization cost of
$11,941,471 in FY2021. For the 10-year implementation period of the
rule (FY 2021 through FY 2030), DHS estimates the annual net societal
costs to be $51,406,937 (undiscounted) in FY 2021, $416,212,496
(undiscounted) in FY 2022, $541,795,976 (undiscounted) from FY 2023
through FY 2027 each year, $388,592,536 (undiscounted) from FY 2028
through FY 2030 each year. DHS estimates the annualized net societal
costs of the rule to be $430,797,915, annualized at 3-percent and
$425,277,621, annualized at 7-percent discount rates.
IV. Background
A. History and Purpose of the H-1B Visa Program
The H-1B nonimmigrant visa program allows U.S. employers to
temporarily employ foreign workers in specialty occupations, defined by
statute as occupations that require the theoretical and practical
application of a body of highly specialized knowledge, and a bachelor's
or higher degree in the specific specialty, or its equivalent. See INA
sections 101(a)(15)(H)(i)(b) and 214(i); 8 U.S.C 1101(a)(15)(H)(i)(b)
and 1184(i). The H-1B visa program also includes workers performing
services related to a Department of Defense (DOD) cooperative research
and development project or coproduction project, and services of
distinguished merit and ability in the field of fashion modeling. See
INA section 101(a)(15)(H)(i)(b), 8 U.S.C. 1101(a)(15)(H)(i)(b); 8 CFR
214.2(h)(4)(i)(A).
The number of aliens who may be issued initial H-1B visas or
otherwise provided initial H-1B nonimmigrant status during any fiscal
year has been capped at various levels by Congress over time, with the
current numerical limit generally being 65,000 per fiscal year. See INA
section 214(g)(1)(A); 8 U.S.C. 1184(g)(1)(A). Congress has also
provided for various exemptions from the annual numerical allocations,
including an exemption for 20,000 aliens who have earned a master's or
higher degree from a United States institution of higher education. See
INA section 214(g)(5) and (7); 8 U.S.C. 1184(g)(5) and (7).
Additionally, Congress has exempted from the annual numerical
allocations H-1B workers who are or will be employed at a nonprofit or
public institution of higher education or a related or affiliated
nonprofit entity, a nonprofit research organization, or a governmental
research organization. See INA section 214(g)(5)(A)-(B), 8 U.S.C.
1184(g)(5)(A)-(B). The 5-year average annual number of H-1B petitions
approved outside the numerical limitations established by Congress,
which also includes petitions for continuing H-1B workers who were
previously counted toward an annual numerical allocation and who have
time remaining on their 6-year period of authorized admission, see INA
section 214(g)(7), 8 U.S.C. 1184(g)(7), was approximately 214,371 based
on DHS data.\10\ As of September 30, 2019, the total H-1B authorized-
to-work population was approximately 583,420.\11\ The total H-1B
authorized-to-work population, rather than the yearly cap, is more
indicative of the scope of the H-1B nonimmigrant program and the urgent
need to strengthen it to protect the economic interests of U.S.
workers.
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\10\ Office of Policy and Strategy, Policy Research Division
(PRD) Claims 3 and USCIS analysis. July 29, 2020.
\11\ U.S. Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Policy and Strategy, Policy Research
Division, H-1B Authorized to Work Population Estimate, available at
https://www.uscis.gov/sites/default/files/document/reports/USCIS%20H-1B%20Authorized%20to%20Work%20Report.pdf (reflecting that
not all of the 583,420 H-1B workers were approved in the same fiscal
year as the data used to estimate the population as of September 30,
2019, was pulled on October 9, 2019).
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Despite Congress' efforts to protect the interest of U.S. workers
to ensure that H-1B workers will not adversely affect them,\12\ data
show that the H-1B program has been subject to abuse or otherwise
adversely affected U.S. workers from its inception.\13\ When the
Immigration Act of 1990 (IMMACT 90) was introduced, Congress
specifically sought to address ``the problem of H-visa abuse.'' \14\ As
early as 1992, the U.S. Government Accountability Office (GAO)
published a report noting concerns by representatives of organized
labor that H-1B nonimmigrants were adversely affecting the wages and
working conditions of U.S. workers, and were allowing U.S. employers to
excessively rely on foreign labor.\15\ In September 2000, the GAO
published another report highlighting documented allegations of and
concerns relating to program misuse--such as employers paying workers
less than comparable wages or employees using false credentials--and
questioning whether the program adequately serves employers or protects
workers.\16\ This report concluded that the H-1B ``program is
vulnerable to abuse--both by employers who do not have bona fide jobs
to fill or do not meet required labor conditions, and by potential
workers who present false credentials.'' \17\ Such abuse threatens the
wages and job opportunities of qualified U.S. workers. More GAO reports
followed in 2003, 2006, and 2011, all continuing to report on the
pervasive abuses and shortcomings in the H-1B program. For instance,
the 2006 report highlighted common violations such as employers not
paying their H-1B workers the required wage and owing them back
wages.\18\ The 2011 reports cited to the high incidence of wage-related
complaints against staffing companies, and concluded that the
involvement of staffing companies in the H-1B program further weakens
U.S. labor protections.\19\ Several news alerts and
[[Page 63922]]
investigative newsletters released in 2019 and 2020 by the Department
of Labor (DOL) and Department of Justice (DOJ) highlighted convictions
of individuals using their companies to engage in fraud through the H-
1B program.\20\
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\12\ See INA section 212(n) and (p); 8 U.S.C. 1182(n) and (p).
\13\ See, e.g., How H-1B Visas Have Been Abused Since the
Beginning, CBS News, Aug. 13, 2017, https://www.cbsnews.com/news/how-h-1b-visas-have-been-abused-since-the-beginning/.
\14\ 1990 U.S.C.C.A.N. 6710, 6724.
\15\ U.S. Gov't Accountability Off., GAO/PEMD-92-17, Immigration
and the Labor Market Nonimmigrant Alien Workers in the United
States, at 17 (1992), https://www.gao.gov/assets/160/151654.pdf.
\16\ U.S. Gov't Accountability Off., GAO/HEHS-00-157, H-1B
Foreign Workers: Better Controls Needed to Help Employers and
Protect Workers, at 4 (2000), https://www.gao.gov/new.items/he00157.pdf.
\17\ GAO/HEHS-00-157, at 19.
\18\ U.S. Gov't Accountability Off., GAO-06-901T, H-1B Visa
Program: More Oversight by Labor can Improve Compliance with Program
Requirements (2006), https://www.gao.gov/new.items/d06901t.pdf.
\19\ U.S. Gov't Accountability Off., GAO-11-26, Reforms are
Needed to Minimize the Risks and Costs of Current Program 60 (2011),
https://www.gao.gov/assets/320/314501.pdf (``The involvement of
staffing companies, whose share of H-1B workers is not precisely
known but is likely not trivial, further weakens enforcement efforts
because the end-user of the H-1B worker is not liable for complying
with labor protection requirements.''); U.S. Gov't Accountability
Off., GAO-11-505T, H-1B Visa Program Multifaceted Challenges Warrant
Re-examination of Key Provisions 12 (2011), https://www.gao.gov/assets/90/82421.pdf (``Another factor that weakens protection for
U.S. workers is the fact that the H-1B program lacks a legal
provision to hold employers accountable to program requirements when
they obtain H-1B workers through staffing companies'' and ``Wage and
Hour investigators reported that a large number of the complaints
they receive about H-1B employers were related to the activities of
staffing companies.'').
\20\ See, e.g., OIG Investigations Newsletter (U.S. Dep't of
Lab., Off. of Inspector Gen.) (Dec. 1, 2019--Jan. 30, 2020), https://www.oig.dol.gov/public/oinewsletter/DOL-OIG%20Investigations%20Newsletter%20December%202019%20-%20January%202020.pdf (last visited Aug. 11, 2020); OIG
Investigations Newsletter (U.S. Dep't of Lab., Off. of Inspector
Gen.) (Oct. 1, 2019-Nov. 30, 2019), https://www.oig.dol.gov/public/oinewsletter/DOL-OIG%20Investigations%20Newsletter%20October%20-%20November%202019.pdf (last visited June 23, 2020); News Release
(U.S. Dep't of Just., U.S. Att'y's Off.) (Feb. 19, 2020), https://www.justice.gov/usao-ednc/pr/corporate-president-kronsys-inc-cygtec-inc-and-arkstek-inc-sentenced-conspiracy-commit (last visited June
23, 2020); News Release (U.S. Dep't of Just., U.S. Att'y's Off.)
(Mar. 17, 2020), https://www.justice.gov/usao-nj/pr/owner-information-technology-companies-sentenced-15-months-prison-visa-fraud-and-tax (last visited June 23, 2020).
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DHS believes that the same concerns have persisted in recent years,
as highlighted by certain petitions filed by entities within the
information technology (IT) industry. In recent years, there has been a
75 percent increase in the proportion of IT workers in the population
of H-1B approved petitions--from 32 percent in FY 2003 to 56 percent in
FY 2019.\21\ As a comparison, there has been a 16 percent increase in
the proportion of IT workers in the U.S. civilian workforce--from 2.5
percent in 2000 to 2.9 percent in 2014.\22\ At the same time, wages
have largely remained flat in IT fields.\23\ For instance, the average
IT wage was 189 percent of the national average in FY 2003 and 182
percent in FY 2019.\24\ The disproportionate growth of H-1B petitions
for computer-related occupations versus the percentage growth of IT
positions in the U.S. economy, and the stagnation of IT wages, demands
DHS seriously consider whether petitioners are using the H-1B program
in a way that disproportionally benefits foreign IT workers and the
companies who petition for them to the detriment of U.S. IT workers.
DHS must also consider whether there is a correlation between the large
flow of H-1B workers into the economy and the stagnation of wages for
U.S. IT workers generally.\25\ If the employment of H-1B workers is
having an adverse effect on similarly employed U.S. workers by way of
reducing their wages or displacing U.S. workers by hiring H-1B workers,
that adverse effect likely will be proportionately greater in the IT
industry.
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\21\ Characteristics of H-1B Specialty Occupation Workers (H-
1B): Fiscal Year 2004 Issued November 2006. https://www.uscis.gov/sites/default/files/document/reports/h1b_fy04_characteristics.pdf
(last visited Sept. 18,2020), Table 13A. IT related industry (IT
industry number of petition approved is 70,189 and total number of
petition approved is 217,340); Characteristics of H-1B Specialty
Occupation Workers: Fiscal Year 2019 Annual Report to Congress
October 1, 2018--September 30, 2019 (Mar. 5, 2020), https://www.uscis.gov/sites/default/files/document/reports/Characteristics_of_Specialty_Occupation_Workers_H-1B_Fiscal_Year_2019.pdf (last visited Aug. 11, 2020), Table 13A. IT
related industry (IT industry number of petition approved is 217,447
and total number of petition is 388,403). Calculations: 75% = 56%/
32%-1. 32% rounded = (70,189/217,340) * 100%, 56% rounded =
(217,447/388,403) * 100%.
\22\ U.S. Census Bureau, Occupations in Information Technology
(Aug. 16, 2016), available at https://www.census.gov/content/dam/Census/library/publications/2016/acs/acs-35.pdf, p2. Figure 1.
\23\ Hal Salzman, Daniel Kuehn, and B. Lindsay Lowell, Economic
Policy Institute, Guestworkers in the High-Skill U.S. Labor Market:
An analysis of supply, employment, and wage trends, Apr. 24, 2013,
at 2, 23, available at https://files.epi.org/2013/bp359-guestworkers-high-skill-labor-market-analysis.pdf (``However,
following the crash of 2001, wages declined and have been
essentially flat for the decade.''); Sean McLain and Dhanya Ann
Thoppil, Bulging Staff Cost, Shrinking Margins, CRISIL Research,
(2019), available at https://www.crisil.com/en/home/our-analysis/reports/2019/05/bulging-staff-cost-shrinking-margins.html (analyzing
local wages for computer-based occupations, along with H-1B wage
rates prevalent for the same computer-based occupations across the
U.S., and concluding that the average per hour rate for an H-1B-
based employee is ~$33 while a locally-based employee is ~$42). See
generally Hira and Gopalaswamy, supra note 5, at 11 (``H-1B workers
are underpaid and placed in substandard working conditions, while
U.S. workers' wages are depressed, and they lose out on job
opportunities'').
\24\ See U.S. Department of Labor, Bureau of Labor Statistics,
Occupational Employment Statistics, May 2003 National (XLS),
available at https://www.bls.gov/oes/tables.htm (last visited Sept.
22, 2020) (showing that the annual mean wage for SOC code 00-0000
was $36,210 in May 2003); U.S. Department of Labor, Bureau of Labor
Statistics, Occupational Employment Statistics, May 2019 National
(XLS), available at https://www.bls.gov/oes/tables.htm (last visited
Sept. 22, 2020) (showing that the annual mean wage for SOC code 00-
0000 was $53,490 in May 2019); U.S. Department of Labor, Bureau of
Labor Statistics, Occupational Employment Statistics, May 2003
National industry-specific (XLS), available at https://www.bls.gov/oes/tables.htm (last visited Sept. 28, 2020) (showing that the
annual mean wage for SOC code 15-0000 and NAICS code 541000 was
$68,420 in May 2003); U.S. Department of Labor, Bureau of Labor
Statistics, Occupational Employment Statistics, May 2019 National
Industry-Specific Occupational Employment and Wage Estimates, NAICS
541000--Professional, Scientific, and Technical Services, available
at https://www.bls.gov/oes/2019/may/naics3_541000.htm (last visited
Sept. 28, 2020) (showing that the annual mean wage for SOC code 15-
0000 was $97,230 in May 2019). We calculated the percentages by
dividing the 2019 figures by the 2003 figures for the respective SOC
codes (189% = ($68,420/$36,210) * 100%, 182% = ($97,230/$53,490) *
100%).
\25\ Salzman, supra note 22, at 26 (``In other words, the data
suggest that current U.S. immigration policies that facilitate large
flows of guestworkers appear to provide firms with access to labor
that will be in plentiful supply at wages that are too low to induce
a significantly increased supply from the domestic workforce.'').
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Moreover, many H-1B petitions for IT workers are filed by
companies, including staffing companies,\26\ that place the H-1B
workers at worksites of third-parties, i.e., companies that did not
directly petition USCIS for H-1B workers. From FY 2018 to FY 2019 an
average of 71 percent of all approved H-1B petitions in the IT industry
involved third-party worksites (compared to 36 percent for all approved
H-1B petitions across industries).\27\ As noted in the 2011 GAO report
and evidenced by the recent convictions highlighted in the DOL and DOJ
reports, the extensive involvement and lack of accountability of
staffing companies within the H-1B program is a major factor that makes
the program vulnerable to fraud and weakens protection for U.S.
workers.\28\ DOL has received a large number of complaints about
staffing companies and participated in several investigations that led
to convictions of technology staffing companies for fraudulent
involvement in the H-1B program.\29\
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\26\ The term ``staffing companies'' refers to ``employers that
apply for H-1B workers but ultimately place these workers at the
worksites of other employers as part of their business model.'' GAO-
11-26, at 19.
\27\ U.S. Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Policy and Strategy, Policy Research
Division, Systems: C3 database, Database Queried: 05/20/2020, Report
Created: 05/20/2020. This data is based on H-1B approvals where the
petitioner reported ``off-site [work] at another company or
organization's location'' on the Form I-129. The term ``off-site''
which is used on the Form I-129 has the same meaning as ``third-
party worksite.'' The I-129 does not ask a petitioner seeking to
place a beneficiary ``off-site'' to specify whether it is a staffing
company.
\28\ GAO-11-505T, at 12; OIG Investigations Newsletter (Dec. 1,
2019-Jan. 30, 2020), supra; OIG Investigations Newsletter (Oct. 1,
2019-Nov. 30, 2020), supra; News Release (Feb. 19, 2020, supra; News
Release (Mar. 17, 2020), supra.
\29\ See supra note 17.
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Some staffing companies may also be described as outsourcing
companies, i.e., companies that are hired to perform services or
produce goods for another company and, in some cases, also seek to
transfer work from the United States to workers based abroad to reduce
the overall costs of the services they provide to clients in the United
States.\30\
[[Page 63923]]
Outsourcing companies have been criticized as ``gaming the system'' so
that they have a ready pool of low-paid temporary workers, which
ultimately hurts the wages of U.S. workers.\31\ The ``outsourcing''
business model involves using H-1B visas to bring relatively low-cost
foreign workers into the United States and then contracting them out to
other U.S. companies seeking their services.\32\ These H-1B workers are
relatively ``low-paid'' or ``low-cost'' in the sense that they are
often paid less than the local median salary for workers in the same
occupation, in other words, often paid less than what the worker would
command in a truly competitive open job market.\33\ H-1B employers are
able to ``take advantage of program rules in order to legally pay many
of their H-1B workers below the local median wage for the jobs they
fill.'' \34\ By bringing in lower-paid foreign workers, U.S. companies,
in turn, may be incentivized to avoid hiring more U.S. workers or, even
worse, lay off their own, higher-paid U.S. workers who previously
performed those services adequately and replace them with lower-paid H-
1B workers of lesser qualifications employed by a staffing company.\35\
An employer's preference for hiring H-1B workers based on their
citizenship, immigration status, or national origin could violate the
INA's anti-discrimination provision at INA section 274B, 8 U.S.C.
1324b.\36\ Further still, the outsourcing companies may ultimately send
their H-1B nonimmigrant workers back to their home countries to perform
their jobs or move a significant amount of work overseas to capitalize
on lower costs of business, taking away even more U.S. jobs.\37\ As a
result, DHS is concerned that the current regulatory regime encourages
some companies to use the H-1B visa as a tool to lower business costs
at the expense of U.S. workers.\38\
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\30\ Merriam-Webster. (n.d.). Outsource. In Merriam-Webster.com
dictionary. Retrieved August 3, 2020, from https://www.merriam-webster.com/dictionary/outsource (``to procure (something, such as
some goods or services needed by a business or organization) from
outside sources and especially from foreign or nonunion suppliers:
To contract for work, jobs, etc., to be done by outside or foreign
workers.''). While the word ``outsourcing'' can refer to the
practice of locating work overseas, see e.g., GAO-11-26 at FN 48, it
can also be used interchangeably with the word ``staffing'' to refer
to the general practice of contracting out H-1B workers to third-
party clients, see Daniel Costa and Ron Hira, Economic Policy
Institute, H-1B Visas and Prevailing Wage Levels, May 4, 2020, at 4,
available at https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels/ (describing the ``outsourcing business
model'' as ``plac[ing] H-1B hires at third-party client sites.'').
\31\ See, e.g ., Costa and Hira, supra note 30; Sarah Pierce and
Julia Gelatt, Migration Policy Institute, Evolution of the H-1B:
Latest Trends in a Program on the Brink of Reform, March 2018, at 2,
available at https://www.migrationpolicy.org/research/evolution-h-1b-latest-trends-program-brink-reform; Karen Pedersen, Peter
Eckstein, Sandra Candy Robinson, Commentary: The H-1B Visa Problem
as IEEE-USA Sees It, Mar. 6, 2017, available at https://spectrum.ieee.org/view-from-the-valley/at-work/tech-careers/commentary-the-h1b-problem-as-ieeeusa-sees-it; HaeYoun Park, How
Outsourcing Companies are Gaming the Visa System, N.Y. Times, Nov.
10, 2015, available at https://www.nytimes.com/interactive/2015/11/06/us/outsourcing-companies-dominate-h1b-visas.html; Julia Preston,
Large Companies Game H-1B Program, Costing the U.S. Jobs, N.Y.
Times, Nov. 10, 2015, available at https://www.nytimes.com/2015/11/11/us/large-companies-game-h-1b-visa-program-leaving-smaller-ones-in-the-cold.html?action=click&contentCollection=U.S.®ion=Footer&module=WhatsNext&version=WhatsNext&contentID=WhatsNext&moduleDetail=undefined&pgtype=Multimedia.
\32\ Pedersen, Eckstein, and Robinson, supra note 33.
\33\ Costa and Hira, supra note 30 (explaining that ``the market
wage is the wage a U.S. worker would command for a position'' and
that ``the most reasonable and closest proxy for a market wage is
the median wage for an occupation in a local area''); Youyou Zhou,
Most H-1B Workers are Paid Less, But It Depends on the Type of Job,
The Associated press, Apr. 18, 2017, available at https://apnews.com/afs:Content:873580003 (workers in high-tech jobs such as
computer science are often paid less than their American
counterparts).
\34\ Costa and Hira, supra note 30. As this article explains,
these actions comport with the existing legal framework in which H-
1B employers are only required to pay the higher of the actual wage
level for similarly situated employees or the prevailing wage. See
section 212(n)(1)(A) of the Act. Further, based on the way the four
wage levels are set, the lowest two permissible H-1B wage levels
fall below the local median salaries. See section 212(p)(4) of the
Act. For more general information on wage levels and how they are
calculated, see Amy Marmer Nice, Wages and High-Skilled Immigration:
How the Government Calculates Prevailing Wages and Why It Matters,
American Immigration Council, Dec. 2017, available at https://www.americanimmigrationcouncil.org/sites/default/files/research/wages_and_high-skilled_immigration.pdf.
\35\ Preston, supra note 33.
\36\ See U.S. Department of Justice, Justice News, Justice
Department Settles Claim Against Virginia-Based Staffing Company for
Improperly Favoring Temporary Visa Workers Over U.S. Workers (July
27, 2020), https://www.justice.gov/opa/pr/justice-department-settles-claim-against-virginia-based-staffing-company-improperly-favoring (announcing a settlement agreement with a provider of IT
staffing and consulting services resolving a claim that one of the
provider's offices ``discriminated against U.S. workers because of
their citizenship status when it posted a job advertisement
specifying a preference for non-U.S. citizens who held temporary
work visas. . . . Under the INA, employers cannot discriminate based
on citizenship, immigration status or national origin at any stage
of their hiring process, including the posting of job
advertisements, regardless of whether it affects the final hiring
outcome.'').
\37\ Preston, supra note 33.
\38\ Maria L. Ontiveros, H-1B Visas, Outsourcing and Body Shops:
A Continuum of Exploitation for High Tech Workers, 38 Berkeley J.
Emp. & Lab. L. 1, 17 (2017); Grace Martinez, Comment, Legal
Immigrants Displacing American Workers: How U.S. Corporations are
Exploiting H-1B Visas to the Detriment of Americans, 86 UMKC L. Rev.
209 (2017).
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U.S.-based companies that are not traditionally in the staffing or
outsourcing business also have exploited the H-1B program in ways not
contemplated by Congress.\39\ In recent years, U.S. companies such as
The Walt Disney Company, Hewlett-Packard, University of California San
Francisco, Southern California Edison, Qualcomm, and Toys ``R'' Us have
reportedly laid off their qualified U.S. workers and replaced them with
H-1B workers provided by H-1B-dependent outsourcing companies.\40\ In
some cases, the replaced U.S. workers were even forced to train the
foreign workers who were taking their jobs and sign nondisclosure
agreements about this treatment as a condition of receiving any form of
severance.\41\ These examples illustrate how the current regulatory
regime of the H-1B program allows employers, whether staffing,
outsourcing, or other types of companies, to exploit the H-1B program
in ways not contemplated by Congress.
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\39\ Paayal Zaveri and Aditi Roy, Big American Tech Companies
are Snapping up Foreign-Worker Visas, Replacing Indian Outsourcing
Firms, CNBC, Apr. 20, 2018, available at https://www.cnbc.com/2018/04/20/big-american-tech-companies-are-snapping-up-h1-b-visas.html.
See also H.R. REP. 105-657, 20-21 (stating ``[b]ecause the bill is
so dramatically increasing the supply of foreign workers without
there being firm evidence of a domestic labor shortage, it is
imperative that we build into the H-1B program adequate protections
for U.S. workers'').
\40\ See Pierce and Gelatt, supra note 33, at 24; Hira and
Gopalaswamy, supra note 22; Patrick Thibodeau, Southern California
Edison IT Workers ``Beyond Furious'' Over H-1B Replacements,
Computerworld, Feb. 4, 2015, available at https://www.computerworld.com/article/2879083/southern-california-edison-it-workers-beyond-furious-over-h-1b-replacements.html; DHS, Office of
Inspector General, OIG-18-03, USCIS Needs a Better Approach to
Verify H-1B Visa Participants, at 3 (Oct. 20, 2017), available at
https://www.oig.dhs.gov/sites/default/files/assets/2017/OIG-18-03-Oct17.pdf.
\41\ See Perrero v. HCL Am., Inc., No. 616CV112ORL31TBS, 2016 WL
5943600, at 1 (M.D. Fla. Oct. 13, 2016) (``According to the
allegations of the Complaint (Doc. 1), which are accepted in
pertinent part as true for purposes of resolving the instant
motions, Perrero is a former employee of [Disney]'s information
technology (``IT'') department. (Doc. 1 at 6). HCL is an IT services
provider. (Doc. 27 at 1). In January 2015, he and several hundred
other [Disney] IT workers were fired; their responsibilities were
filled by IT workers employed by HCL. (Doc. 1 at 6). The workers who
replaced the Plaintiff and his co-workers were foreign nationals
holding H-1B visas. (Doc. 1 at 7) [Disney] management told Perrero
and his co-workers of their imminent firing more than 90 days in
advance, and informed them that if they did not stay and train the
HCL IT workers during that period, they would not get a bonus and
severance pay.''). See also Costa and Hira, supra note 30 (``the
laid-off U.S. workers were required to train their H-1B replacements
to do their former jobs--and in some cases sign nondisclosure
agreements saying they would not speak publicly about their
experiences--as a condition of receiving severance pay.'').
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Employers that pay below-median wages to their H-1B workers (in
other words, any employer not paying at least Level III wages) are not
necessarily in violation of the law. Section 212(n)(1)(A) of the Act
requires employers to pay at least the actual wage level paid to other
similarly situated employees or the prevailing wage, whichever is
higher. Since the
[[Page 63924]]
lowest two prevailing wage levels are currently set lower than the
local median salary, employers offering wages at the two lowest
permissible wage levels (Levels I and II) may be able to lawfully pay
below-median wages.\42\ In FY 2019, 60 percent of all H-1B jobs were
certified at the two lowest prevailing wage levels.\43\
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\42\ Costa and Hira, supra note 30 (explaining how the two
lowest permissible H-1B prevailing wage levels are significantly
lower than the local median salaries).
\43\ Id. at 18.
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Moreover, H-1B employers that displace U.S. workers are not
necessarily violating the law, either. While section 212(n)(1)(E)
through (G) of the Act, 8 U.S.C. 1182(n)(1)(E)-(G), requires H-1B-
dependent employers \44\ to make certain attestations such as not
displacing U.S. workers and taking good faith steps to recruit U.S.
workers, the statute also offers broad exceptions to these requirements
that, over time, have effectively gutted the U.S. worker recruitment
requirement such as by utilizing third-party contractors \45\ or paying
a $60,000 annual salary, among other things.\46\ DOL data establishes
that 99.3 percent of all H-1B-dependent employers claim exemption from
these attestation requirements,\47\ showing how easily and frequently
H-1B-dependent employers are able to bypass statutory requirements
intended to protect U.S. workers. In addition, these purported U.S.
worker protections only apply to employers who are H-1B-dependent
employers or have been found by DOL to have committed a willful failure
to meet their Labor Condition Application (LCA) obligations or material
misrepresentation in its application.\48\ However, employment
discrimination in favor of H-1B visa holders over qualified U.S.
workers may violate another part of the INA, at INA section 274B, 8
U.S.C. 1324b.\49\
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\44\ The term ``H-1B-dependent employer'' is defined at section
212(n)(3) of the Act, 8 U.S.C. 1182(n)(3). As stated in H.R. REP.
105-657, H.R. REP. 105-657, 23 (1998), H-1B-dependent companies
``often do nothing but contract their foreign workers out to other
companies--often after the other companies have laid off American
workers. H-1B-dependent companies have been accused of a
disproportionate share of H-1B abuses.''
\45\ See e.g. Perrero v. HCL Am., Inc., supra at 3-4. (The Court
rejected Plaintiff's argument that, because he and his Disney co-
workers were replaced by contracted HCL H-1B workers, ``HCL must
have lied when it made the ```displacement' certification on the
LCA.'' The Court found that the only way for HCL's certification on
the LCA to be false would have been if the working conditions of
HCL's U.S. worker employees, not Disney's, were adversely affected
by HCL's H-1B hiring. Thus, by contracting through HCL as opposed to
hiring directly, Disney and HCL circumvented worker protections,
exploiting a loophole in the system designed to protect U.S.
workers.). See also 144 Cong. Rec. E2323-01, 144 Cong. Rec. E2323-
01, E2323, 1998 WL 785735 (stating ``[t]he employers most prone to
abusing the H-1B program are called `job contractors' or `job
shops'. . . the[se] companies don't have to shoulder the obligations
of being the legally recognized employers--the job contractors/shops
remain the official employers'') (statement of Rep. Lamar Smith,
then chairman of the Subcommittee on Immigration and Claims).
\46\ For example, section 212(n)(3)(B) of the Act defines
``exempt H-1B nonimmigrant'' as an H-1B nonimmigrant who receives
annual wages equal to at least $60,000 or has attained a master's or
higher degree (or its equivalent) in a related specialty. The
$60,000 salary threshold was set in 1998 through the American
Competitiveness and Workforce Improvement Act and has not been
adjusted to date. If adjusted for inflation, the salary threshold
for the exception to the U.S. worker recruitment would be over
$93,000. See, U.S. Dep't of Labor, Bureau of Labor Statistics, CPI
Inflation Calculator, https://www.bls.gov/data/inflation_calculator.htm (comparing data from October 1998 to May
2020).
\47\ U.S. Department of Labor, Employment and Training
Administration, Office of Foreign Labor Certification, Public
Disclosure File: LCA Data, Federal Fiscal Year: 2019.
\48\ See INA section 212(n)(1)(E)(ii) and (G), 8 U.S.C.
1182(n)(1)(E)(ii) and (G).
\49\ See supra note 36.
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Overall, these reports and studies expose significant gaps in the
ability of the H-1B program, as currently structured, to serve its
original intent to supplement the U.S. workforce with a limited number
of highly skilled workers while protecting the economic interests of
U.S. workers. The President's recent ``Proclamation Suspending Entry of
Aliens Who Present a Risk to the U.S. Labor Market Following the
Coronavirus Outbreak'' notes that the entry of additional workers
through the H-1B program ``presents a significant threat to employment
opportunities for Americans affected by the extraordinary economic
disruptions caused by the COVID-19 outbreak.'' \50\ The changes made in
the interim final rule will extend beyond the duration of the
proclamation, but the threats described in the proclamation highlight
the urgent need for strengthening of the H-1B program to protect U.S.
workers. The Department's responsibility to ensure the safety and
security of our country includes the protection of American
workers.\51\ This responsibility includes ensuring, as much as
possible, that American workers are not negatively affected by H-1B
workers. Therefore, the Department believes it is imperative to issue
this rule to strengthen the integrity of the H-1B program and make more
certain that petitions are only approved for qualified beneficiaries
and petitioners.
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\50\ See Proclamation 10052 of June 22, 2020, Suspension of
Entry of Immigrants and Nonimmigrants Who Present a Risk to the
United States Labor Market During the Economic Recovery Following
the 2019 Novel Coronavirus Outbreak, 85 FR 38263 (Jun. 25, 2020),
available at https://www.govinfo.gov/content/pkg/FR-2020-06-25/pdf/2020-13888.pdf.
\51\ Cf. section 101 of the Homeland Security Act of 2002, 6
U.S.C. 111(b)(1)(F), stating that a primary mission of the
Department is to ``ensure that the overall economic security of the
United States is not diminished by efforts, activities, and programs
aimed at securing the homeland.''
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B. Implementation of This Interim Final Rule
This rule only will apply to petitions filed on or after the
effective date of the regulation, including amended petitions or
petition extensions. DHS will not apply the new regulations to any
pending petitions nor to previously approved petitions, either through
reopening or through a notice of intent to revoke.
V. Discussion of the Provisions To Strengthen the H-1B Program
A. Amending the Definition and Criteria for a ``Specialty Occupation''
1. Amending the Definition of a ``Specialty Occupation''
DHS is revising the regulatory definition and standards for a
``specialty occupation'' to align with the statutory definition of
``specialty occupation.''
Section 101(a)(15)(H)(i)(b) of the INA, 8 U.S.C.
1101(a)(15)(H)(i)(b), describes, among others, nonimmigrants coming
temporarily to the United States to perform services in a specialty
occupation. Section 214(i)(1) of the INA, 8 U.S.C. 1184(i)(1) states,
in relevant part, ``the term `specialty occupation' means an occupation
that requires--(A) theoretical and practical application of a body of
highly specialized knowledge, and (B) attainment of a bachelor's or
higher degree in the specific specialty (or its equivalent) as a
minimum for entry into the occupation in the United States.''
Currently, 8 CFR 214.2(h)(4)(ii) defines ``specialty occupation'' as an
occupation which requires theoretical and practical application of a
body of highly specialized knowledge in fields of human endeavor
including, but not limited to, architecture, engineering, mathematics,
physical sciences, social sciences, medicine and health, education,
business specialties, accounting, law, theology, and the arts, and
which requires the attainment of a bachelor's degree or higher in a
specific specialty, or its equivalent, as a minimum for entry into the
occupation in the United States.
First, this rule amends the definition of a ``specialty
occupation'' at 8 CFR 214.2(h)(4)(ii) to clarify that there must be a
direct relationship between the required degree field(s) and the duties
of the position. Consistent with existing USCIS policy and practice, a
position
[[Page 63925]]
for which a bachelor's degree in any field is sufficient to qualify for
the position, or for which a bachelor's degree in a wide variety of
fields unrelated to the position is sufficient to qualify, would not be
considered a specialty occupation as it would not require the
application of a body of highly specialized knowledge.\52\ Similarly,
the amended definition clarifies that a position would not qualify as a
specialty occupation if attainment of a general degree, without further
specialization, is sufficient to qualify for the position. This is
consistent with the statutory requirement that a degree be ``in the
specific specialty'' and has long been the position of DHS and its
predecessor, Immigration and Naturalization Service (INS).\53\
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\52\ See Caremax Inc v. Holder, 40 F. Supp. 3d 1182, 1187-88
(N.D. Cal. 2014).
\53\ See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st
Cir. 2007) (stating ``[t]he courts and the agency consistently have
stated that, although a general-purpose bachelor's degree, such as a
business administration degree, may be a legitimate prerequisite for
a particular position, requiring such a degree, without more, will
not justify the granting of a petition for an H-1B specialty
occupation visa''); see also Shanti, Inc. v. Reno, 36 F. Supp. 2d
1151, 1166 (D. Minn.1999) (the proffered position's requirement of a
business administration degree is a general degree requirement, and
therefore, INS did not abuse its discretion in denying the H-1B
petition); All Aboard Worldwide Couriers, Inc. v. Attorney General,
8 F. Supp. 2d 379, 381 (S.D.N.Y. 1998) (INS did not abuse its
discretion in determining that the proffered position did not
qualify as a specialty occupation based on ``an absence of evidence
that [the petitioner] require[s] job candidates to have a B.A. in a
specific, specialized area.'').
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Under this new rule, the petitioner will have the burden of
demonstrating that there is a direct relationship between the required
degree in a specific specialty (in other words, the degree field(s)
that would qualify someone for the position) and the duties of the
position. In many cases, the relationship will be clear and relatively
easy to establish. For example, it should not be difficult to establish
that a required medical degree is directly correlated to the duties of
a physician. Similarly, a direct relationship may be established
between the duties of a lawyer and a required law degree, and the
duties of an architect and a required architecture degree. In other
cases, the direct relationship may be less readily apparent, and the
petitioner may have to explain and provide documentation to meet its
burden of demonstrating the relationship. To establish a direct
relationship, the petitioner would need to provide information
regarding the course(s) of study associated with the required degree,
or its equivalent, and the duties of the proffered position, and
demonstrate the connection between the course of study and the duties
and responsibilities of the position.
The requirement of a direct relationship between a degree in a
specific specialty, or its equivalent, and the position should not be
misconstrued as necessarily requiring a singular field of study.
Section 214(i)(1) of the INA allows the ``attainment of a bachelor's or
higher degree in the specific specialty (or its equivalent)'' (emphasis
added). The placement of the phrase ``or its equivalent'' after the
phrase ``in the specific specialty'' means that USCIS may accept the
equivalent to a degree in a specific specialty, as long as that
equivalent provides the same (or essentially the same) body of
specialized knowledge.\54\ In general, provided the required fields of
study are closely related, for example, electrical engineering and
electronics engineering for the position of an electrical engineer, a
minimum of a bachelor's or higher degree, or its equivalent, in more
than one field of study may be recognized as satisfying the ``degree in
the specific specialty (or its equivalent)'' requirement of section
214(i)(1)(B) of the INA, 8 U.S.C. 1184(i)(1)(B). In such a case, the
``body of highly specialized knowledge'' required by section
214(i)(1)(A) of the INA, 8 U.S.C. 1184(i)(1)(A), essentially would be
the same, and each field of study would be in a ``specific specialty''
directly related to the position consistent with section 214(i)(1)(B)
of the INA, 8 U.S.C. 1184(i)(1)(B).
---------------------------------------------------------------------------
\54\ See, e.g., Relx, Inc. v. Baran, 397 F. Supp. 3d 41, 54
(D.D.C. 2019) (``There is no requirement in the statute that only
one type of degree be accepted for a position to be specialized.'');
Residential Fin. Corp. v. U.S. Citizenship & Immigration Servs., 839
F. Supp. 2d 985, 997 (S.D. Ohio 2012) (stating that when determining
whether a position is a specialized occupation ``knowledge and not
the title of the degree is what is important.'').
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In cases where the petitioner lists degrees in multiple disparate
fields of study as the minimum entry requirement for a position, the
petitioner would have to establish how each field of study is in a
specific specialty providing ``a body of highly specialized knowledge''
directly related to the duties and responsibilities of the particular
position to meet the requirements of sections 214(i)(1)(A) and (B) of
the INA, 8 U.S.C. 1184(i)(1)(A) and (B), the regulatory definition, and
one of the four criteria at new 8 CFR 214.2(h)(4)(iii)(A).
As such, a minimum entry requirement of a bachelor's or higher
degree, or its equivalent, in multiple disparate fields of study would
not automatically disqualify a position from being a specialty
occupation. For example, a petitioner may be able to establish that a
bachelor's degree in the specific specialties of either education or
chemistry, each of which provide a body of highly specialized
knowledge, is directly related to the duties and responsibilities of a
chemistry teacher. In such a scenario, the ``body of highly specialized
knowledge'' requirement of section 214(i)(1)(A) of the INA, 8 U.S.C.
1184(i)(1)(A), and the ``degree in the specific specialty'' requirement
of section 214(i)(1)(B) of the INA, 8 U.S.C. 1184(i)(1)(B), would both
be met and the chemistry teacher position listing multiple disparate
fields of study would be in a specialty occupation.
In determining specialty occupation, USCIS interprets the
``specific specialty'' requirement in section 214(i)(1)(B) of the INA,
8 U.S.C. 1184(i)(1)(B), to relate back to the body of highly
specialized knowledge requirement referenced in section 214(i)(1)(A) of
the INA, 8 U.S.C. 1184(i)(1)(A), required by the specialty occupation
in question, such that section 214(i)(1)(B) of the INA, 8 U.S.C.
1184(i)(1)(B), is only met if the purported degree in a specific
specialty or specialties, or its equivalent, provides a body of
specialized knowledge directly related to the duties and
responsibilities of the particular position as required by section
214(i)(1)(A) of the INA, 8 U.S.C. 1184(i)(1)(A).
If the minimum entry requirement for a position is a general degree
without further specialization or an explanation as to what type of
degree is required, the ``degree in the specific specialty (or its
equivalent)'' requirement of section 214(i)(1)(B) of the INA, 8 U.S.C.
1184(i)(1)(B), would not be satisfied. For example, a requirement of a
general engineering degree for a position of software developer would
not satisfy the specific specialty requirement. In such an instance,
the petitioner would not satisfactorily demonstrate how a required
general engineering degree provides a body of highly specialized
knowledge that is directly related to the duties and responsibilities
of a software developer position.\55\
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\55\ See supra note 54.
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Similarly, a petition with a requirement of an engineering degree
in any or all fields of engineering for a position of software
developer would not suffice unless the record establishes how each or
every field of study within an engineering degree provides a body of
highly specialized knowledge directly relating to the duties and
responsibilities of the software
[[Page 63926]]
developer position.\56\ The issue is whether a proffered position
requires the application of a body of highly specialized knowledge as
required by section 214(i)(1)(A) of the INA, 8 U.S.C. 1184(i)(1)(A),
and attainment of at least a bachelor's degree in the specific
specialty (or its equivalent) as required by section 214(i)(1)(B) of
the INA, 8 U.S.C. 1184(i)(1)(B). If an individual could qualify for a
software developer position based on having a seemingly unrelated
degree in any engineering field or in general engineering, or its
equivalent, then it cannot be concluded that the position requires the
application of a body of highly specialized knowledge and a degree in a
specific specialty because someone with an entirely or largely
unrelated degree may qualify to perform the job.\57\ In such a
scenario, the requirements of sections 214(i)(1)(A) and (B) of the INA,
8 U.S.C. 1184(i)(1)(A) and (B), would not be satisfied.
---------------------------------------------------------------------------
\56\ The requirement of any engineering degree could include,
for example, a chemical engineering degree, marine engineering
degree, mining engineering degree, or any other engineering degree
in a multitude of unrelated fields.
\57\ In these examples, the educational credentials are referred
to by the title of the degree for expediency. However, USCIS
separately evaluates whether the beneficiary's actual course of
study is directly related to the duties of the position, rather than
merely the title of the degree. When applicable, USCIS will consider
whether the beneficiary has education, specialized training, and/or
progressively responsible experience that is equivalent to
completion of a U.S. baccalaureate or higher degree in the specialty
occupation.
---------------------------------------------------------------------------
Similarly, a requirement of a bachelor's degree in an unspecified
``quantitative field'' (which could include mathematics, statistics,
economics, accounting, or physics) for a software developer position
would be insufficient to meet the requirements of a specialty
occupation unless the record identifies specific specialties within the
wide variety of ``quantitative fields'' and establishes how each
identified degree in a specific specialty provides a body of highly
specialized knowledge, consistent with section 214(i)(1)(A) of the INA,
8 U.S.C. 1184(i)(1)(A), that is directly related to the duties and
responsibilities of the software developer position. While a position
may allow a range of degrees, and apply multiple bodies of highly
specialized knowledge, each of those qualifying degree fields must be
directly related to the proffered position.
2. Amending the Criteria for Specialty Occupation Positions
As quoted above, under section 214(i)(1) of the INA, 8 U.S.C.
1184(i)(1), a ``specialty occupation'' requires attainment of a
bachelor's or higher degree in the specific specialty (or its
equivalent) as a minimum for entry into the occupation in the United
States. However, the current regulatory criteria at 8 CFR
214.2(h)(4)(iii)(A) states that a bachelor's degree be ``normally''
required, or ``common to the industry,'' or that the knowledge required
for the position is ``usually associated'' with at least a bachelor's
degree or equivalent. The words ``normally,'' ``common,'' and
``usually'' are not found in the statute, and therefore, should not
appear in the regulation. To conform to the statutory definition of a
``specialty occupation'' and promote consistent adjudications, DHS is
eliminating the terms ``normally,'' ``common,'' and ``usually'' from
the regulatory criteria. See new 8 CFR 214.2(h)(4)(iii)(A). This change
means that the petitioner will have to establish that the bachelor's
degree in a specific specialty or its equivalent is a minimum
requirement for entry into the occupation in the United States by
showing that this is always the requirement for the occupation as a
whole, the occupational requirement within the relevant industry, the
petitioner's particularized requirement, or because the position is so
specialized, complex, or unique that it is necessarily required to
perform the duties of the specific position.
The wording of the current regulatory criteria creates ambiguity.
For example, the dictionary definition of ``normally'' is ``usually, or
in most cases,'' and ``usually'' is defined as ``in the way that most
often happens.'' \58\ ``Most'' is defined as ``the biggest number or
amount (of), or more than anything or anyone else,'' \59\ and is a
synonym for ``normally'' or ``usually.'' These definitions could be
read to encompass anything from 51 percent to 99 percent, and possibly
a broader range depending on the interpretation, highlighting how
ambiguous they are. Use of these terms, if interpreted to mean that a
position is a specialty occupation if merely 51 percent of positions
within a certain occupation require at least a certain bachelor's
degree, is inconsistent with the most natural read of, and arguably
runs directly contrary to the statutory definition of, a ``specialty
occupation'' which imposes a minimum entry requirement of a bachelor's
or higher degree in the specific specialty (or its equivalent). See
section 214(i)(1) of the INA, 8 U.S.C. 1184(i)(1). Thus, DHS believes
that it is imperative to align the regulatory language with the
statutory language and clarify that a bachelor's (or higher) degree in
a directly related specific specialty is required. It will no longer be
sufficient to show that a degree is normally, commonly, or usually
required. In FY 2018, USCIS frequently issued Requests for Evidence
(RFEs) in H-1B cases, requesting more evidence or explanations to
establish that proffered positions qualified as specialty
occupations.\60\ DHS believes that the revisions in this rule will
clarify the requirements for establishing a specialty occupation and
reduce the need for RFEs in future adjudications.
---------------------------------------------------------------------------
\58\ Cambridge Dictionary, normally, https://dictionary.cambridge.org/us/dictionary/english/normally (last
visited Sept. 9, 2020); Cambridge Dictionary, usually, https://dictionary.cambridge.org/us/dictionary/english/usually (last visited
Sept. 9, 2020).
\59\ Cambridge Dictionary, most, https://dictionary.cambridge.org/us/dictionary/english/most (last visited
Sept. 9, 2020).
\60\ See USCIS report Understanding Requests for Evidence
(RFEs): A Breakdown of Why RFEs were Issued for H-1B Petitions in
Fiscal Year 2018, available at https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/BAHA/understanding-requests-for-evidence-h-1b-petitions-in-fiscal-year-2018.pdf.
---------------------------------------------------------------------------
In addition, DHS is replacing the phrase, ``To qualify as a
specialty occupation,'' with the phrase ``A proffered position does not
meet the definition of specialty occupation unless it also satisfies''
prior to setting forth the regulatory criteria. See new 8 CFR
214.2(h)(4)(iii)(A). This change will clarify that meeting one of the
regulatory criteria is a necessary part of--but not necessarily
sufficient for--demonstrating that a position qualifies as a specialty
occupation. This is not new; the criteria at current 8 CFR
214.2(h)(4)(iii)(A) must be construed in harmony with and in addition
to other controlling regulatory provisions and with the statute as a
whole. In 2000, the U.S. Court of Appeals for the Fifth Circuit
highlighted the ambiguity of the regulatory provision's current
wording, and petitioners have misinterpreted the criteria in 8 CFR
214.2(h)(4)(iii)(A) as setting forth both the necessary and sufficient
conditions to qualify as a specialty occupation, a reading that
resulted in some positions meeting one condition of 8 CFR
214.2(h)(4)(iii)(A), but not the definition as a whole.\61\
[[Page 63927]]
These changes will eliminate this source of confusion.
---------------------------------------------------------------------------
\61\ Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000)
(stating that current 8 CFR 214.2(h)(4)(iii)(A) ``appears to
implement the statutory and regulatory definition of specialty
occupation through a set of four different standards. However, this
section might also be read as merely an additional requirement that
a position must meet, in addition to the statutory and regulatory
definition. The ambiguity stems from the regulation's use of the
phrase `to qualify as.' In common usage, this phrase suggests that
whatever conditions follow are both necessary and sufficient
conditions. Strictly speaking, however, the language logically
entails only that whatever conditions follow are necessary
conditions. . . . If Sec. 214.2(h)(4)(iii)(A) is read to create a
necessary and sufficient condition for being a specialty occupation,
the regulation appears somewhat at odds with the statutory and
regulatory definitions of `specialty occupation.' '').
---------------------------------------------------------------------------
DHS also is amending 8 CFR 214.2(h)(4)(iii)(A)(1) by replacing the
word ``position'' with ``occupation,'' so that it sets forth ``the
minimum requirement for entry into the particular occupation in which
the beneficiary will be employed.'' See new 8 CFR
214.2(h)(4)(iii)(A)(1). DHS believes that replacing ``position'' with
``occupation'' will clarify that the first criterion can be satisfied
if the petitioner can show that its position falls within an
occupational category for which all positions within that category have
a qualifying minimum degree requirement.\62\ DHS further believes that
this revision provides added clarity to the regulatory criteria as the
criteria will flow from general to specific (i.e., occupation level to
industry to employer to position). If the occupation requires at least
a bachelor's degree in a specific specialty (e.g., lawyer or doctor)
then it necessarily follows that a position in one of those occupations
would require a degree and qualify as a specialty occupation. If that
is not applicable, then the petitioner could submit evidence to show
that at least a bachelor's degree in a specific specialty (or its
equivalent) is required based on industry norms, the employer's
particular requirement, or because of the particulars of the specific
position. USCIS will continue its practice of consulting DOL's
Occupational Outlook Handbook and other reliable and informative
sources submitted by the petitioner, to assist in its determination
regarding the minimum entry requirements for positions located within a
given occupation.
---------------------------------------------------------------------------
\62\ DHS generally determines a position's occupation or
occupational category by looking at the standard occupational
classification (SOC) code designated on the LCA.
---------------------------------------------------------------------------
DHS further is amending 8 CFR 214.2(h)(4)(iii)(A)(2) by
consolidating this criterion's second prong into the fourth criterion.
See new 8 CFR 214.2(h)(4)(iii)(A)(2). The second prong of current 8 CFR
214.2(h)(4)(iii)(A)(2), which focuses on a position's complexity or
uniqueness, is similar to current 8 CFR 214.2(h)(4)(iii)(A)(4), which
focuses on a position's complexity and specialization. In practice,
they are frequently consolidated into the same analysis. This amendment
streamlines both criteria, as well as the explanation and analysis in
written decisions issued by USCIS pertaining to specialty occupation
determinations, as such decisions discuss all four criteria and are
necessarily repetitive because of the existing overlap between 8 CFR
214.2(h)(4)(iii)(A)(2) and (4). This amendment also simplifies the
analysis because petitioners may now demonstrate eligibility under this
criterion if the position is ``so specialized, complex, or unique''
(emphasis added), as opposed to ``so complex or unique'' under current
8 CFR 214.2(h)(4)(iii)(A)(2) and ``so specialized and complex'' under
current 8 CFR 214.2(h)(4)(iii)(A)(4) (emphasis added). Notwithstanding
these amendments, the analytical framework of the first prong of 8 CFR
214.2(h)(4)(iii)(A)(2) generally will remain the same. Thus, a
petitioner will satisfy new 8 CFR 214.2(h)(4)(iii)(A)(2) if it
demonstrates that the specialty degree requirement is the minimum entry
requirement for (1) parallel positions (2) at similar organizations (3)
within the employer's industry in the United States. This criterion is
intended for the subset of positions with minimum entry requirements
that are determined not necessarily by occupation, but by specific
industry standards. For example, registered nurses (RNs) generally do
not qualify for H-1B classification because most RN positions normally
do not require a U.S. bachelor's or higher degree in nursing (or a
directly related field), or its equivalent, as the minimum for entry
into these particular positions.\63\ However, advanced practice
registered nurses generally would be specialty occupations due to the
advanced level of education and training required for
certification.\64\ For this criterion, DHS would continue its practice
of consulting the DOL's Occupational Outlook Handbook and other
reliable and informative sources, such as information from the
industry's professional association or licensing body, submitted by the
petitioner.
---------------------------------------------------------------------------
\63\ See U.S. Dep't of Labor, Bureau of Labor Statistics,
Occupational Outlook Handbook, ``Registered Nurses,'' https://www.bls.gov/ooh/healthcare/registered-nurses.htm#tab-4 (indicating
that nurses can have a bachelor's or associate's degree in nursing,
or a diploma from an approved nursing program) (last visited Jun.
25, 2020).
\64\ USCIS Policy Memorandum PM-602-0104, Adjudication of H-1B
Petitions for Nursing Occupations (Feb. 18, 2015), available at
https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015-0218_EIR_Nursing_PM_Effective.pdf.
---------------------------------------------------------------------------
The third criterion at 8 CFR 214.2(h)(4)(iii)(A)(3) essentially
will remain the same, other than the deletion of ``normally.'' This
criterion still will recognize an employer's valid employment
practices, provided that those practices reflect actual requirements.
The additional sentence, ``The petitioner also must establish that the
proffered position requires such a directly related specialty degree,
or its equivalent, to perform its duties,'' simply will reinforce the
existing requirements for a specialty occupation, in other words, that
the position itself must require a directly related specialty degree,
or its equivalent, to perform its duties. See new 8 CFR
214.2(h)(4)(iii)(A)(3). Employers requiring degrees as a proxy for a
generic set of skills will not meet this standard. Employers listing a
specialized degree as a hiring preference will not meet this standard
either. If USCIS were constrained to recognize a position as a
specialty occupation merely because an employer has an established
practice of demanding certain educational requirements for the
proffered position--without consideration of whether the position
requires the application of a body of highly specialized knowledge
consistent with the degree requirement--then any beneficiary with a
bachelor's degree in a specific specialty could be brought into the
United States to perform work in a non-specialty occupation if the
employer arbitrarily imposed such a degree requirement for the non-
specialty occupation position.\65\ With respect to the first part of
this criterion, a petitioner could submit evidence of an established
recruiting and hiring practice for the position to establish its
requirements for the position. DHS is leaving the term ``established
practice'' undefined to allow more flexibility for petitioners,
although it notes that petitioners seeking to fill a position for the
first time generally would not be able to demonstrate an ``established
practice.'' \66\
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\65\ Defensor, 201 F.3d at 388 (noting ``If only [the
employer]'s requirements could be considered, then any alien with a
bachelor's degree could be brought into the United States to perform
a non-specialty occupation, so long as that person's employment was
arranged through an employment agency which required all clients to
have bachelor's degrees. Thus, aliens could obtain six-year visas
for any occupation, no matter how unskilled, through the subterfuge
of an employment agency. This result is completely opposite the
plain purpose of the statute and regulations, which is to limit H1-B
[sic] visas to positions which require specialized experience and
education to perform.'')
\66\ First-time hirings are not precluded from qualifying under
one of the other criteria.
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As discussed above, the criterion at the new 8 CFR
214.2(h)(4)(iii)(A)(4) incorporates the second prong of current 8 CFR
214.2(h)(4)(iii)(A)(2). See new 8 CFR 214.2(h)(4)(iii)(A)(4). No other
substantive changes are being made to this criterion. Thus, the fourth
criterion can be satisfied if the petitioner
[[Page 63928]]
demonstrates that the proffered position's job duties are so
specialized, complex, or unique that they necessitate the attainment of
a U.S. bachelor's degree in a directly related specific specialty, or
its equivalent.
DHS acknowledges that some petitioners may believe they have a
reliance interest in retaining the existing regulatory framework for
specialty occupation. For example, by eliminating the word ``normally''
from the regulatory criterion at 8 CFR 214.2(h)(4)(iii)(A)(1), some
occupations that previously qualified under this criterion may no
longer qualify because a bachelor's degree in a specific specialty or
its equivalent is not always a minimum requirement for entry. To the
extent that petitioners may have a reliance interest in retaining the
current regulations, the government's interests in having the
regulations conform to the best reading of the statutory definition and
creating clearer standards to facilitate more consistent adjudications
\67\ far outweigh any such reliance interest. It is important to note
that, although some occupations will no longer qualify under 8 CFR
214.2(h)(4)(iii)(A)(1), the petitioner may still establish that the
proffered position satisfies any one of the other criteria at 8 CFR
214.2(h)(4)(iii)(A)(2)-(4). None of the revised provisions
categorically prevent any particular position from qualifying as a
specialty occupation.
---------------------------------------------------------------------------
\67\ See GAO/HEHS-00-157, at 25 (finding that ``a petition
previously submitted and denied can be approved by another
adjudicator, even if the denying adjudicator determined that the
employer does not meet H-1B requirements'' owing to inconsistently
available reasons for denials and information system limitations);
GAO-11-26, at 27 (noting examples of instances in which
``[e]xecutives at several companies'' experienced inconsistencies in
the adjudication process, including decisions to deny or grant H-1B
classification based on whether projects required ``specialty
occupation'').
---------------------------------------------------------------------------
Further, DHS recognizes the possibility that some petitions for H-
1B nonimmigrant classification might have been approved in error under
the current regulation even though the petitions indicated that an
alien could qualify to perform the relevant position based on a general
degree. USCIS has generally denied such petitions on the basis that
such petitions do not meet the statutory and regulatory definition of
specialty occupation under the current regulation, but recognizes that
a small number might have been approved in error and that similar
petitions will be denied as a result of this Rule's clarification of
the definition of ``specialty occupation.'' For example, by adding the
phrase ``A position is not a specialty occupation if attainment of a
general degree, such as business administration or liberal arts,
without further specialization, is sufficient to qualify for the
position'' at new 8 CFR 214.2(h)(4)(ii), positions where a general
degree may qualify someone to perform the job, and that may have been
erroneously approved as specialty occupations because of confusion
created by the ambiguous wording in the current regulations, may now be
denied. But again, to the extent that the revised regulations would
result in the denial of some petitions that were erroneously approved
under the current regulatory scheme, the government's interests in
better adhering to the statute and better ensuring consistent
adjudication far outweigh any interests petitioners may have in
receiving continued petition approvals in a small number of cases based
on error resulting from imprecise regulatory text. DHS notes that each
case is decided on its own merits, and simply because a petition was
approved previously does not guarantee that a similar petition would be
approved in the future as prior approvals are not binding on USCIS.\68\
The burden of proof remains on the petitioner, even where an extension
of stay in H-1B nonimmigrant status is sought.\69\
---------------------------------------------------------------------------
\68\ Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785
(E.D. La.), aff'd 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122
S. Ct. 51 (2001); Matter of Church Scientology Intl, 19 I&N Dec.
593, 597 (Comm'r 1988).
\69\ See 8 CFR 103.2(b)(1) (``An applicant or petitioner must
establish that he or she is eligible for the requested benefit at
the time of filing the benefit request and must continue to be
eligible through adjudication); 8 CFR 214.1(c)(5) (``Where an
applicant or petitioner demonstrates eligibility for a requested
extension, it may be granted at the discretion of the Service.'').
---------------------------------------------------------------------------
B. Defining ``Worksite'' and ``Third Party Worksite''
DHS will add definitions for ``worksite'' and ``third-party
worksite'' to the existing list of definitions at 8 CFR
214.2(h)(4)(ii). See new 8 CFR 214.2(h)(4)(ii). First, DHS will define
``worksite'' similar to the DOL definition of ``place of employment''
in 20 CFR 655.715 as ``the physical location where the work is actually
performed by the H-1B nonimmigrant.'' A ``worksite'' will not include
any location that would not be considered a ``worksite'' for LCA
purposes, meaning that DHS will apply the same exclusions and examples
of ``non-worksite locations'' as set forth in DOL's regulations.\70\ As
H-1B petitioners and USCIS officers should already be familiar with the
concept of ``worksite'' because it also applies in the LCA context, DHS
believes that this definition does not represent a significant change.
Second, DHS will define ``third-party worksite'' as ``a worksite, other
than the beneficiary's residence in the United States, that is not
owned or leased, and not operated, by the petitioner.'' See new 8 CFR
214.2(h)(4)(ii).\71\ This definition is similar to the ``owned or
operated'' test commonly used in the LCA context.\72\ Again, as this
concept should already be familiar to H-1B petitioners and USCIS
officers, this definition should not be a significant change.
---------------------------------------------------------------------------
\70\ See 20 CFR 655.715 (definition of ``place of employment'').
\71\ While the definition of ``third-party worksite'' will
exclude the beneficiary's U.S. residence, employment of the
beneficiary from home must still be in accordance with all
applicable laws.
\72\ See 20 CFR 655.734(a)(1)(ii)(A) (the petitioner's
obligation requires proper notice at each place of employment
``whether such place of employment is owned or operated by the
employer or by some other person or entity'').
---------------------------------------------------------------------------
The newly added definitions are helpful because the terms
``worksite'' and ``third-party worksite'' are used elsewhere in the
amended regulations. As explained below, the new employer-employee
relationship definition specifically refers to the beneficiary's
worksite as a relevant factor in determining whether such relationship
exists (e.g., ``where the supervision is not at the petitioner's
worksite, how the petitioner maintains such supervision,'' see new 8
CFR 214.2(h)(4)(ii)). Further, a 1-year maximum validity period will
apply whenever the beneficiary will be working at a third-party
worksite. See new 8 CFR 214.2(h)(9)(iii)(A)(1). Finally, the new site
visit provisions will clarify that inspections may include any third-
party worksites, as applicable. See new 8 CFR 214.2(h)(4)(i)(B)(7).
C. Clarifying the Definition of ``United States Employer''
Currently, the term ``United States employer'' is defined at 8 CFR
214.2(h)(4)(ii) as ``a person, firm, corporation, contractor, or other
association, or organization in the United States'' which, among other
things, ``[e]ngages a person to work within the United States'' and
``[h]as an employer-employee relationship with respect to employees
under this part, as indicated by the fact that it may hire, pay, fire,
supervise, or otherwise control the work of any such employee.''
Through this rule, DHS is changing this definition by: (1) Striking the
word ``contractor'' from the general definition of ``United States
employer''; (2) inserting the word ``company'' in that general
definition; (2) expanding upon the existing requirement to engage the
beneficiary to work within the United
[[Page 63929]]
States; and (3) expanding upon the employer-employee relationship and
the factors used to determine if a valid ``employer-employee
relationship'' between the petitioner and the beneficiary exists or
will exist. See new 8 CFR 214.2(h)(4)(ii).
DHS believes these revisions are necessary to clarify the
requirements to qualify as an employer for purpose of the H-1B
classification. As previously discussed, the current regulation at 8
CFR 214.2(h)(4)(ii) defines ``United States employer'' as an entity
that has an ``employer-employee relationship'' with an ``employee.''
But these terms are not adequately defined. Section 101(a)(15)(H)(i)(b)
of the INA, 8 U.S.C. 1101(a)(15)(H)(i)(b), defines an H-1B nonimmigrant
as a worker coming temporarily to the United States to perform services
in a specialty occupation, and for whom the intending ``employer'' has
filed a labor condition application. Section 214(c)(1) of the INA, 8
U.S.C. 1184(c)(1), states in relevant part that the question of
importing any alien as an H-1B nonimmigrant shall be determined after
consultation with appropriate agencies of the Government, upon petition
of the importing employer. Congress continued using the term
``employer'' and ``employment'' in subsequent amendments, but without
specifically defining those terms. See, e.g., section 214(n) of the
INA, 8 U.S.C. 1184(n), as amended by the American Competitiveness in
the Twenty-first Century Act of 2000 (AC21), Public Law 106-313, 114
Stat. 1251 (authorizing the H-1B nonimmigrant to accept new
``employment'' upon the filing of an H-1B petition by the ``prospective
employer''). DHS believes the revisions in this rule are necessary to
clarify and strengthen the requirements to qualify as a United States
employer for the H-1B program.
1. Replacing ``contractor'' With ``company''
First, striking ``contractor'' will avoid potential confusion as
the term ``contractor'' in the definition is misleading. The inclusion
of ``contractors'' in the regulatory language could be read to suggest
that contractors should generally qualify under the definition of a
``United States employer.'' While a contractor is certainly not
excluded from qualifying as a ``United States employer'' for purposes
of an H-1B petition, the contractor, like any petitioner, must
establish the requisite ``employer-employee relationship'' with the H-
1B beneficiary. This revision will also update the definition to
include reference to ``company,'' as that term is commonly used to
describe various types of business entities, such as limited liability
companies.
DHS acknowledges that third-party arrangements involving one or
more contractors may be a legitimate business model.\73\ However, these
types of business arrangements generally make it more difficult to
assess whether the petitioner and the beneficiary have or will have the
requisite employer-employee relationship. Typically, these types of
business arrangements require the beneficiary to be placed at one or
more third-party worksites, which are not owned or leased and not
operated, by the petitioner. This placement, in itself, potentially
dilutes the petitioner's control over the beneficiary. The difficulty
of assessing control is increased in situations where there are one or
more intermediary contractors (often referred to as ``vendors'') \74\
involved in the contractual chain. Overall, the more parties there are
in the contractual chain, the more likely those other parties exert
control over the beneficiary's work, and more importantly, potentially
limit the amount of control, if any, that the petitioner would have
over the beneficiary's employment. As a result, the relationship
between the petitioner and the beneficiary becomes more attenuated.
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\73\ Karen Jensen, Barriers to H-1B Visa Sponsorship in the IT
Consulting Industry: The Economic Incentive to Alter H-1B Policy, 35
Fordham International Law Journal Volume 1027, 1036 (2017).
\74\ The ``vendor'' concept is frequently referenced in H-1B
petitions that involve the information technology (IT) industry.
While the term is not precisely defined, petitions commonly refer to
``primary vendors,'' who have an established or preferred
relationship with a client, or ``implementing vendors,'' who bid on
an IT project with a client and then implement the contract using
their own staff. Primary or implementing vendors may turn to
secondary vendors to fill staffing needs on individual projects.
See, e.g., Acclaim Systems, Inc. v. Infosys, No. Civ.A. 13-7336,
2016 WL 974136 at *2 (E.D. Pa. Mar. 11, 2016). As a result, the
ultimate client project may be staffed by a team of H-1B
beneficiaries who were petitioned for by different, unrelated
employers.
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By removing the word ``contractor'', DHS seeks to avoid any
confusion or mistaken belief that contractors should generally qualify
as ``United States employers.'' Petitioners that are contractors are
reminded of their burden, similar to all other H-1B petitioners,
whether they are a person, corporation, or company, to establish the
employer-employee relationship for each H-1B petition they file.
Nevertheless, it is important to note that the deletion of the term
``contractor'' from the regulatory definition does not mean that a
contractor never would qualify as a ``United States employer'' for the
purpose of filing an H-1B petition. A contractor may be a person, firm,
company, corporation, or other association or organization, and the
contractor (whatever the form) still may qualify as a U.S. employer of
the H-1B beneficiary if the contractor demonstrates the requisite
employer-employee relationship with the beneficiary.\75\ Because this
change will not impact a contractor's continued ability to establish a
valid employer-employee relationship on a case-by-case basis, DHS does
not believe that removing the term ``contractor'' will have a
substantive impact on the eligibility determination. The change is
simply intended to remove a term that is typically associated with work
arrangements that typically do not involve an employer and employee.
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\75\ DHS recognizes that this change will result in a definition
of ``United States employer'' that is slightly different from DOL's
definition of ``employer.'' 20 CFR 655.715 states in pertinent part:
``Employer means a person, firm, corporation, contractor, or other
association or organization in the United States that has an
employment relationship with H-1B . . . nonimmigrants and/or U.S.
worker(s).'' However, DHS does not believe this disparity would be
significant, particularly because the DOL definition still requires
the contractor to have an employment relationship with the H-1B
nonimmigrant based on the common law. Furthermore, DHS definitions
are separate from, and generally serve different purposes than, DOL
definitions. While DOL may deem the person or entity filing an H-1B
petition to be the employer for purpose of enforcing wage and other
obligations, DHS must determine whether the petitioner qualifies as
the intending or importing United States employer. See, e.g., 20 CFR
655.705 (DOL administers the LCA process and most enforcement
provisions).
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2. Engaging the Beneficiary To Work
As currently written in 8 CFR 214.2(h)(4)(ii), the requirement for
a petitioner to ``[engage] a person to work within the United States''
has limited practical value. It does not specify that the petitioner
should engage the beneficiary (rather than ``a person''). And it does
not qualify the work to be performed within the United States. By
stating in new 8 CFR 214.2(h)(4)(ii) that an employer must ``[engage]
the beneficiary to work within the United States, and ha[ve] a bona
fide, non-speculative job offer for the beneficiary,'' DHS seeks to
provide more meaningful requirements for the definition of ``United
States employer,'' consistent with statutory references to the
intending or importing employer petitioning for an alien to perform
services in a specialty occupation.\76\
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\76\ Consistent with the existing rule, this language does not
and will not prohibit H-1B nonimmigrants from travelling
internationally.
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[[Page 63930]]
New 8 CFR 214.2(h)(4)(ii) will make it clear that a petitioner must
have non-speculative employment for the beneficiary at the time of
filing.\77\ At the time of filing, the petitioner must establish that a
bona fide job offer exists and that actual work will be available as of
the requested start date.\78\ If the petitioner does not have any work
available, then it cannot reasonably engage the beneficiary ``to work
within the United States'' in order to qualify as a United States
employer at the time of filing. See 8 CFR 214.2(h)(4)(ii).
---------------------------------------------------------------------------
\77\ Cf. 8 CFR 103.2(b)(1) (eligibility must be established at
the time of filing).
\78\ The requested start date as indicated on the H-1B petition
in this context may differ from when an H-1B nonimmigrant is
considered to ``enter into employment'' for purposes of receiving
required pay under DOL regulations. See 20 CFR 655.731(c)(6),
section 212(n) of the INA. While DOL regulations provide for a
limited period of time for the employer to place the beneficiary on
the payroll, that is a separate rule pertaining to the employer's
wage obligation under section 212(n) of the INA and does not pertain
to the petitioner's obligation under section 214 of the INA and new
8 CFR 214.2(h)(4)(ii) to establish that work is available for the
beneficiary to perform as of the start date requested by the
petitioner. The requirement in new 8 CFR 214.2(h)(4)(ii) will be met
if work is available for the beneficiary as of the start date of
intended employment requested on the H-1B petition.
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The agency long held and communicated the view that speculative
employment is not permitted in the H-1B program. For example, a 1998
proposed rule documented this position, stating that historically,
USCIS (or the Service, as it was called at the time) has not granted H-
1B classification on the basis of speculative, or undetermined,
prospective employment.\79\ This proposed rule explained that the H-1B
classification was not intended as a vehicle for an alien to engage in
a job search within the United States, or for employers to bring in
temporary foreign workers to meet possible workforce needs arising from
potential business expansions or the expectation of potential new
customers or contracts.\80\ Speculative employment undermines the
integrity and a key goal of the H-1B program, which is to help U.S.
employers obtain the skilled workers they need to meet their business
needs, subject to annual numerical limitations, while protecting the
wages and working conditions of U.S. workers. Further, USCIS cannot
reasonably ascertain whether the beneficiary will be employed in a
specialty occupation if the employment is speculative.
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\79\ Petitioning Requirements for the H Nonimmigrant
Classification, 63 FR 30419, 30419-20 (proposed June 4, 1998) (to be
codified at 8 CFR part 214).
\80\ Id. See also GAO/HEHS-00-157, supra at 10 (``The petition
is required to contain the necessary information to show that a bona
fide job exists . . . .''); Serenity Info Tech v. Cuccinelli, 2020
WL 2544534, at *13 (N.D. Ga. 2020) (``Demonstrating that the
purported employment is actually likely to exist for the beneficiary
is a basic application requirement . . . .'').
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Note, however, that establishing non-speculative employment does
not amount to demonstrating non-speculative daily work assignments
through the duration of the requested validity period. DHS is not by
this rule requiring employers to establish non-speculative and specific
assignments for each and every day of the proposed period of
employment.\81\ Again, under new 8 CFR 214.2(h)(4)(ii), a petitioner
must demonstrate, at the time of filing, availability of actual work as
of the requested start date.
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\81\ See ITServe Alliance, Inc. v. Cissna, 443 F.Supp.3d 14, 19
(D.D.C. Mar. 10, 2020) (the U.S. District Court for the District of
Columbia, in considering a requirement that an H-1B petitioner
establish non-speculative assignments for the entire time requested
in a petition, explained that ``very few, if any, U.S. employers
would be able to identify and prove daily assignments for the future
three years for professionals in a specialty occupation'' and that
``[n]othing in [the definition of `specialty occupation'] requires
specific and non-speculative qualifying day-to-day assignments for
the entire time requested in the petition.''); Serenity, 2020 WL
2544534, at *13 (citing ITServe). Speculative employment should not
be confused with employment that is contingent on petition approval,
visa issuance (when applicable), and the grant of H-1B status. DHS
recognizes that employment may be actual, but contingent on petition
approval and the alien being granted H-1B status.
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3. Clarifying the ``Employer-Employee Relationship''
Third, DHS will remove the phrase ``as indicated by the fact that
it may hire, pay, fire, supervise, or otherwise control the work of any
such employee'' from the current definition of ``United States
employer,'' and replace that phrase with a separate, more extensive
definition of ``employer-employee relationship'' based on USCIS'
interpretation of existing common law. See new 8 CFR 214.2(h)(4)(ii).
These revisions will clarify the test for establishing the requisite
``employer-employee relationship'' and eliminate the ambiguity and
confusion created by the existing regulation.
The term ``employer-employee relationship'' at 8 CFR
214.2(h)(4)(ii) is not adequately defined. The phrase in that provision
which reads, ``as indicated by the fact that it may hire, pay, fire,
supervise, or otherwise control the work of any such employee,'' does
not give sufficient guidance. For example, it is unclear whether the
five factors are entirely disjunctive, such that the test is met if any
one factor is met, or whether the last factor (``or otherwise
control'') is merely disjunctive of the fourth factor
(``supervision''), such that the first three factors (``hire, pay,
fire'') must always be met.\82\ Although some courts have viewed this
phrase as establishing that any single listed factor, such as pay, in
and of itself is sufficient to establish the requisite control,\83\ DHS
agrees with the Fifth Circuit's statement in Defensor that the
conjunctive interpretation, where ``hire, pay, fire, supervise'' are
read together ``as one prong of the test and `otherwise control the
work' is . . . viewed as an independent prong of the test accords
better with the commonsense notion of employer.'' \84\ DHS firmly
disagrees with the disjunctive interpretation because it leads to the
illogical result of virtually any petitioner satisfying the definition,
because H-1B petitioners are generally required to submit an LCA that
includes an attestation that the petitioner will pay the beneficiary at
least the required wage. If the regulation is read to set forth a five-
factor disjunctive test, then arguably all petitioners who submit an
LCA would satisfy the pay factor, such that reference to other factors
would be superfluous in any case where the petitioner is required to
submit an LCA.
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\82\ See, e.g., Defensor, 201 F.3d at 388 (``Under Sec.
214.2(h)(4)(ii)(2), an employer is someone who `[h]as an employer-
employee relationship with respect to the employees . . . , as
indicated by the fact that it may hire, pay, fire, supervise, or
otherwise control the work of any such employee.' It is unclear
whether Vintage's ability to simply `hire' or `pay' an employee is
sufficient standing alone to grant Vintage employer status under
this definition. Another interpretation would be that `hire, pay,
fire, supervise' are to be read conjunctively as one prong of the
test and `otherwise control the work' is to be viewed as an
independent prong of the test. Under the latter interpretation,
merely being able to `hire' or `pay' an employee, by itself, would
be insufficient to grant employer status to an entity that does not
also supervise or actually control the employee's work . . . . [T]he
second interpretation accords better with the commonsense notion of
employer . . .'')
\83\ See, e.g., ITServe, 2020 WL 1150186, at *17 (``The use of
`or' distinctly informs regulated employers that a single listed
factor can establish the requisite `control' to demonstrate and
employer-employee relationship. This formulation makes evidence that
there are multiple ways to demonstrate employer control, that is, by
hiring or paying or firing or supervising or `otherwise' showing
control.'').
\84\ See Defensor, 201 F.3d at 388 (emphasis added).
---------------------------------------------------------------------------
In the absence of specific, clear, and relevant statutory or
regulatory definitions, USCIS has interpreted these terms consistent
with its understanding of current common law. In 2010, USCIS provided
clarifying policy guidance regarding the employer-employee regulation
and factors based on the common law that USCIS officers should consider
when adjudicating H-1B
[[Page 63931]]
petitions.\85\ While the listed factors were based on the agency's
interpretation of the common law, they were specifically tailored to
the H-1B program based on the agency's expertise and experience dealing
with challenges posed particularly by cases where the beneficiary was
placed at a third-party worksite.\86\ This policy guidance remained in
effect for more than a decade and was only recently rescinded in
response to a recent court decision finding the policy guidance, as
applied, to be a new substantive rule that required rulemaking in
accordance with the Administrative Procedure Act (APA), 5 U.S.C. 551 et
seq.\87\ This interim final rule will restore, with additional
clarification, the policy that existed since 2010 and only recently was
rescinded due to a judicial ruling on procedural grounds.
---------------------------------------------------------------------------
\85\ USCIS Policy Memorandum HQ 70/6.2.8, Determining Employer-
Employee Relationship for Adjudication of H-1B Petitions, Including
Third-Party Site Placements (Jan. 8, 2010). This memorandum was
superseded and archived on June 17, 2020. Therefore, it can be found
in the Supporting Documents accompanying this interim final rule.
\86\ For example, the 2010 memorandum's listed factor of ``does
the petitioner supervise the beneficiary and is such supervision
off-site or on-site'' was an elaboration of the common-law factor of
``the location of the work,'' Darden, 503 U.S. at 323-24, but was
tailored to issues commonly presented by H-1B cases where the
petitioner claimed to supervise the beneficiary, but was not
physically located at the same worksite as the beneficiary and end-
client.
\87\ See, e.g., ITServe, 2010 WL 1150186, at *2 (``The current
CIS interpretation of the employer-employee relationship requirement
is inconsistent with its regulation, was announced and applied
without rulemaking, and cannot be enforced.'').
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USCIS interprets the term ``employer-employee relationship'' to be
the ``conventional master-servant relationship as understood by common-
law agency doctrine.'' \88\ That doctrine, as explained by the Supreme
Court, requires an evaluation of the hiring party's right to control
the manner and means by which the product is accomplished ``among the
other factors'' relevant to the employer-employee relationship.\89\ As
the common law test contains ``no shorthand formula or magic phrase
that can be applied to find the answer, . . . all of the incidents of
the relationship must be assessed and weighed with no one factor being
decisive.'' \90\
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\88\ See Clackamas Gastroenterology Assocs., P.C. v. Wells, 538
U.S. 440, 445 (2003); Nationwide Mutual Ins. Co. v. Darden, 503 U.S.
318, 323 (1992) (quoting Cmty. for Creative Non-Violence v. Reid,
490 U.S. 730 (1989)).
\89\ Darden, 503 U.S. at 323-24.
\90\ Id. at 324 (quoting NLRB v. United Ins. Co. of Am., 390
U.S. 254, 258 (1968)); see also Clackamas, 538 U.S. at 445.
---------------------------------------------------------------------------
Foremost, in addition to restoring through this rule the
longstanding policy that USCIS has applied until recently but had
rescinded in order to reduce the potential for additional APA-based
litigation, the revised regulation will make clear that USCIS will
assess and weigh all relevant aspects of the relationship. See new 8
CFR 214.2(h)(4)(ii). DHS does not believe that any one factor should be
decisive. To do otherwise could be construed as contrary to the Supreme
Court's declaration in Nationwide Mutual Ins. Co. v. Darden that ``all
of the incidents of the relationship must be assessed and weighed with
no one factor being decisive.'' \91\
---------------------------------------------------------------------------
\91\ 503 U.S. at 324.
---------------------------------------------------------------------------
Paragraph (1) of the revised ``employer-employee'' definition lists
non-exhaustive factors to be considered in the totality of the
circumstances in cases where the H-1B beneficiary does not possess an
ownership interest in the petitioning organization or entity. The
revised regulation lists the following factors: (i) Whether the
petitioner supervises the beneficiary and, if so, where such
supervision takes place; (ii) where the supervision is not at the
petitioner's worksite, how the petitioner maintains such supervision;
(iii) whether the petitioner has the right to control the work of the
beneficiary on a day-to-day basis and to assign projects; (iv) whether
the petitioner provides the tools or instrumentalities needed for the
beneficiary to perform the duties of employment; (v) whether the
petitioner hires, pays, and has the ability to fire the beneficiary;
(vi) whether the petitioner evaluates the work-product of the
beneficiary; (vii) whether the petitioner claims the beneficiary as an
employee for tax purposes; (viii) whether the petitioner provides the
beneficiary any type of employee benefits; (ix) whether the beneficiary
uses proprietary information of the petitioner in order to perform the
duties of employment; (x) whether the beneficiary produces an end-
product that is directly linked to the petitioner's line of business;
and (xi) whether the petitioner has the ability to control the manner
and means in which the work product of the beneficiary is accomplished.
By listing these factors out, DHS is making clear that no single factor
is dispositive and that all factors must be taken into consideration to
the extent applicable and appropriate to the facts of the specific
case.
While the new regulation will clarify the employer-employee
relationship test, it is largely consistent with past USCIS policy and
practice and the standard familiar to USCIS officers and H-1B
petitioners.\92\ Specifically and as mentioned earlier, in 2010, USCIS
issued a policy memorandum, ``Determining Employer-Employee
Relationship for Adjudication of H-1B Petitions, Including Third-Party
Site Placements'' \93\ which explained the agency's approach of relying
on common law doctrine, as articulated by the Supreme Court, to
interpret the existing regulatory provision. This memorandum elaborated
on a number of factors that USCIS considers particularly relevant in
the H-1B context, based on its interpretation of the common law and the
facts typically present in H-1B adjudications based on USCIS'
experience. New 8 CFR 214.2(h)(4)(ii) incorporates the same factors
listed in this memorandum with two exceptions, neither of which would
have a significant impact on the adjudication of H-1B petitions. More
specifically, the 2010 memorandum stated the third factor as, ``Does
the petitioner have the right to control the beneficiary on a day-to-
day basis if such control is required?'' In clarifying the factors in
this regulation, DHS is not including the misleading phrase, ``if such
control is required,'' that was previously included in the 2010 USCIS
policy guidance because this phrase implies that control is not
necessarily required. DHS believes that the petitioner should be
required to demonstrate control, which includes, but is not limited to,
the inquiry of whether the petitioner has the right to control day-to-
day.
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\92\ As early as 2009, various Administrative Appeals Office
(AAO) non-precedent decisions began relying on the common law
doctrine, as articulated by the Supreme Court, to analyze the
regulatory provision for employer-employee relationship at 8 CFR
214.2(h)(4)(ii). See, e.g., (Identifying Information Redacted by
Agency) Petition for a Nonimmigrant Worker Pursuant to Section
101(a)(15)(H)(i)(b) of the Immigration and Nationality Act, 8 U.S.C.
S 1101, 2009 WL 3555560, at *2-3 (applying the common law test as
described by the Supreme Court to determine the employer-employee
relationship); (Identifying Information Redacted by Agency) Petition
for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of
the Immigration and Nationality Act, 8 U.S.C. S 1101, 2009 WL
3555481, at *2-3 (same); (Identifying Information Redacted by
Agency) Petition for a Nonimmigrant Worker Pursuant to Section
101(a)(15)(H)(i)(b) of the Immigration and Nationality Act, 8 U.S.C.
S 1101, 2009 WL 4982248, at *7-8 (same).
\93\ See supra note 85.
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The 2010 memorandum contained another potentially confusing or
inaccurate statement in footnote 6 that the employer-employee
relationship ``hinges upon the right to control.'' USCIS now believes
that this statement places an undue emphasis on the right to control
and that the best interpretation of existing case law is that
[[Page 63932]]
``right to control'' is just one factor in the overall common law
analysis rather than the determinative test. Specifically, the Supreme
---------------------------------------------------------------------------
Court in Darden stated:
In determining whether a hired party is an employee under the
general common law of agency, we consider the hiring party's right
to control the manner and means by which the product is
accomplished. Among the other factors relevant to this inquiry are
the skill required; the source of the instrumentalities and tools;
the location of the work; the duration of the relationship between
the parties; whether the hiring party has the right to assign
additional projects to the hired party; the extent of the hired
party's discretion over when and how long to work; the method of
payment; the hired party's role in hiring and paying assistants;
whether the work is part of the regular business of the hiring
party; whether the hiring party is in business; the provision of
employee benefits; and the tax treatment of the hired party
(emphasis added).\94\
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\94\ Darden, 503 U.S. at 323-24.
While the first sentence suggests that the test is right to
control, the second sentence suggests that right to control is one of
many factors, rather than the test. Further, in Clackamas
Gastroenterology Assocs., P.C. v. Wells, the Supreme Court focused on
``the common-law element of control [a]s the principal guidepost that
should be followed in this case,'' and proceeded to analyze ```the
extent of control' that one may exercise over the details of the work
of the other,'' \95\ which again suggests that the test does not hinge
on the right to control. In Clackamas, the Supreme Court also
emphasized that the employer-employee relationship depends on all
incidents of the relationship, with no one factor being decisive.\96\
As the quoted language in these cases suggests, the employer-employee
relationship does not hinge upon any single factor. Thus, the 2010
memorandum's emphasis on the right to control arguably is in tension
with these Supreme Court decisions. DHS believes that the new
definitions in 8 CFR 214.2(h)(4)(ii), along with this explanation, will
clarify that the right to control is not determinative and will not, in
itself, be sufficient to demonstrate an employer-employee relationship,
consistent with common law.
---------------------------------------------------------------------------
\95\ Clackamas, 538 U.S. at 448.
\96\ 538 U.S. at 451 (quoting Darden and NLRB).
---------------------------------------------------------------------------
DHS believes that this clarification of ``right to control'' as one
factor rather than a determinative factor is not a clear departure from
the way USCIS has generally applied the common law test over many
years. While the rescinded 2010 memorandum indicated that the
determination hinges on the right to control, the analysis has always
required an evaluation of the totality of the facts involved,
including, in part, the degree to which the petitioner exercises actual
control over the beneficiary's work. Some officers have placed more
weight on the relevance of the actual control exercised, or to be
exercised, when making the determination. For example, various
Administrative Appeals Office (AAO) non-precedent decisions, citing the
rule established in Darden, have stated that we ``. . . must examine
who has actual control, not just the right to control, the
beneficiary's work.'' \97\ Other officers may have placed less weight
on the relevance of the actual control exercised, or to be exercised,
and more weight on the petitioner's legal right to control the
beneficiary's work. In 2018, USCIS provided further clarification on
its website regarding the implementation of the 2010 policy memorandum
interpreting the employment relationship regulatory requirement:
---------------------------------------------------------------------------
\97\ See, e.g., Matter of K-I-S- Inc., 2019 WL 2090064, at *4
(AAO Apr. 24, 2019) (citing Darden, 503 U.S. at 323); Matter of A-
Inc., 2017 WL 3034820, at *6 (AAO June 29, 2017) (observing that
``if mid-vendors or the end-client exercise actual control over his
work on a daily basis, then we cannot find the Petitioner to be the
Beneficiary's `employer' for H-1B purposes'' (emphasis in
original)).
Although the 2010 memorandum states that the ``employer-employee
relationship hinges on the right to control'' the beneficiary's
employment, the factors that are generally taken into consideration
when assessing the relationship primarily focus on who actually
takes/will take the action rather than the right to take certain
action. For example, when assessing whether the petitioner provides
or will provide the tools or instrumentalities for the beneficiary,
the primary focus is not whether the petitioner has the right to
provide such tools or instrumentalities, but whether the petitioner
actually provides or will provide such items.\98\
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\98\ See https://www.uscis.gov/news/public-releases-topic/business-immigration/questions-answers-memoranda-establishing-employer-employee-relationship-h-1b-petitions.
Accordingly, as reflected on the USCIS website in the 2018
clarification, whether the petitioner actually controls the
beneficiary's employment has been an important factor in the overall
analysis.
Therefore, DHS believes that this provision will not represent a
clear change in longstanding past practice.\99\ The revised provision,
however, will clarify that the employer-employee relationship
determination will be based on the totality of the circumstances. USCIS
will analyze the applicability of the relevant factors listed in the
definition based on the specific evidence provided by the petitioner
when making the employment relationship determination, consistent with
its historical past practice. USCIS will assess and weigh each factor
as it exists or will exist ``in the reality of the actual working
relationship.'' \100\ Thus, even though the ``right to control the work
of the beneficiary'' is listed as a relevant factor, it is one among
many factors that will be weighed. USCIS will also consider other
factors, as noted above, including the petitioner's ability to control
the manner and means in which the work product of the beneficiary is
accomplished. Similarly, when assessing whether the petitioner provides
or will provide the tools or instrumentalities for the beneficiary,
USCIS believes that the primary focus should not be on whether the
petitioner has the right to provide such tools or instrumentalities,
but whether the petitioner actually provides or will provide such
items.\101\ While another person or entity may have the right to
provide tools or instrumentalities to the worker, the relevant point of
focus is on who will actually provide the tools or instrumentalities.
For example, if the tools or instrumentalities will be provided by the
H-1B beneficiary or end-client, that fact may weigh against a finding
that the petitioner will be the employer. If, however, the petitioner
will provide the tools and instrumentalities for the beneficiary to
perform the work, that fact would weigh in favor of a finding that the
petitioner will be the employer. Overall, the petitioner will be
required to demonstrate that it can actually take the claimed actions
when it comes to these factors. It will not be enough for a petitioner
to simply show that it retains the right to control.\102\
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\99\ While USCIS rescinded the 2010 and 2018 policy guidance on
June 17, 2020, and has abstained from applying the common law
analysis in its adjudication of employer-employee relationship, this
is merely a temporary change to allow for rulemaking to occur and
avoid continued litigation of this issue. See USCIS Policy
Memorandum PM-602-0114, Rescission of Policy Memoranda (June 17,
2020), available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2020/PM-602-0114_ITServeMemo.pdf. This interim
practice, however, has only been for a short period of time and
certainly not long enough to create any reliance interests based on
this interim practice.
\100\ NLRB, 390 U.S. at 259; see Darden, 503 U.S. at 323-24.
\101\ See Darden, 503 U.S. at 323-324 (listing ``the source of
the instrumentalities and tools,'' as opposed to the right to
provide such instrumentalities and tools).
\102\ DHS believes that this new regulation is not necessarily
inconsistent with the DOL definition of ``Employed, employed by the
employer, or employment relationship'' at 20 CFR 655.715. Although
the DOL regulation states that ``the key determinant is the putative
employer's right to control the means and manner in which the work
is performed,'' it also recognizes that ``[A]ll of the incidents of
the relationship must be assessed and weighed with no one factor
being decisive.'' Further, in promulgating the regulation, DOL
acknowledged that a list of factors based on the common law provided
a ``useful framework'' for analyzing an employment relationship.
Labor Condition Applications and Requirements for Employers Using
Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion
Models; Labor Certification Process for Permanent Employment of
Aliens in the United States, 65 FR 80110, 80139 (Dec. 20, 2000). To
the extent that there are inconsistencies, DHS believes the common
law supports the proposition that right to control alone is not
sufficient to establish an employer-employee relationship, and that
all incidents of the relationship must be considered in making the
determination.
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[[Page 63933]]
Paragraph (2) of the revised provision lists additional factors
that would be considered in cases where the H-1B beneficiary possesses
an ownership interest in the petitioning organization or entity. These
factors include: (i) Whether the petitioning entity can hire or fire
the beneficiary or set the rules and parameters of the beneficiary's
work, (ii) whether and, if so, to what extent the petitioner supervises
the beneficiary's work, (iii) whether the beneficiary reports to
someone higher in the petitioning entity, (iv) whether and, if so, to
what extent the beneficiary is able to influence the petitioning
entity, (v) whether the parties intended that the beneficiary be an
employee, as expressed in written agreements or contracts, and (vi)
whether the beneficiary shares in the profits, losses, and liabilities
of the organization or entity. All of these are additional factors,
meaning that they would supplement, not replace, the other factors
listed in paragraph (1) of the revised definition. These additional
factors mirror the Supreme Court's analysis in Clackamas, consistent
with DHS's position that the term ``employer,'' undefined in the
statute, should be interpreted consistent with the common law. These
additional factors, as provided in Clackamas, are also familiar to
USCIS officers and H-1B petitioners given the specific references to
Clackamas in the 2010 policy guidance that was in effect until June
2020.\103\
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\103\ 538 U.S. at 448-449.
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DHS recognizes that, as a general principle of law, a corporation
is a separate legal entity from its shareholders.\104\ Nevertheless,
DHS may look beyond the corporate entity to assess whether a valid
employment relationship exists between the petitioner and the
beneficiary such that the petitioner, rather than the beneficiary,
truly qualifies as an ``employer'' pursuant to the statute. Absent
unusual factual circumstances, a beneficiary who is the sole or
majority shareholder of the petitioning entity, does not report to
anyone higher within the organization, is not subject to the decisions
made by a separate board of directors, and has veto power over
decisions made by others on behalf of the organization, will likely not
be considered an ``employee'' of that entity for H-1B purposes. On the
other hand, if a beneficiary is bound by decisions (including the
decision to terminate the beneficiary's position) made by a separate
board of directors or similar managing authority, and does not have
veto power (including negative veto power) over those decisions, then
the mere fact of his or her ownership interest will not necessarily
preclude the beneficiary from being considered an employee.
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\104\ See Matter of Aphrodite Invs. Ltd., 17 I&N Dec. 530
(Comm'r 1980); Matter of Tessel, Inc., 17 I&N Dec. 631 (Act. Assoc.
Comm'r 1980).
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USCIS considered alternatives for defining the term ``employer[,]''
including revising the current regulatory definition to delete and
replace the disjunctive ``or'' with ``and[,]'' or listing the common
law factors verbatim from existing case law. USCIS declined to simply
delete and replace the disjunctive ``or[,]'' and otherwise retain the
current regulation, as it fails to provide the same level of
clarification and guidance as the new definition listing factors
relevant to employer-employee relationship determinations, including
those where the beneficiary has an ownership interest in the
petitioner. USCIS also declined simply to cite to the existing case law
or list the factors verbatim from the existing case law. USCIS believes
that its officers and H-1B petitioners are most familiar with the
general factors as articulated in the rescinded 2010 policy memorandum.
USCIS seeks to restore the policy that has guided H-1B adjudications of
this issue for more than a decade, with certain changes for added
clarity, and believes that the definition in this interim final rule
best accomplishes that goal with the least amount of potential
disruption for USCIS officers and H-1B petitioners. USCIS rescinded the
2010 policy memorandum because of a recent court decision finding the
memorandum, as applied, imposed a substantive rule that departs from
the existing regulation, thereby failing to comply with the APA's
rulemaking requirements. This interim final rule will restore the
policy as articulated in the 2010 memorandum, with additional
clarifications, in compliance with the APA.
DHS recognizes that some petitioners may have developed a reliance
interest based on H-1B adjudications subsequent to the June 2020
rescission of the 2010 policy memorandum. DHS believes, however, that
the reliance interest some petitioners may have based on recent
adjudications does not outweigh the importance of restoring guidance,
with additional clarification, that has existed since 2010 and on which
USCIS officers and H-1B petitioners have relied to assess eligibility
for H-1B classification. The disjunctive wording of the current
regulation is confusing for USCIS officers and H-1B petitioners alike,
and DHS believes that any reliance interest that may have developed in
the short time since June 2020 should yield to restoring guidance that
is more detailed and less ambiguous for all involved in the H-1B
program.
D. Corroborating Evidence of Work in a Specialty Occupation
Pursuant to section 101(a)(15)(H)(i)(b) of the INA, 8 U.S.C.
1101(a)(15)(H)(i)(b), an H-1B nonimmigrant must be coming temporarily
to the United States to perform services in a specialty occupation.
USCIS interprets this statutory provision to require that the
petitioner must actually have work in the specialty occupation listed
in the H-1B petition available for the beneficiary as of the start date
of intended employment. Therefore, DHS is making it clear at new 8 CFR
214.2(h)(4)(iv)(C) that the petitioner must establish, at the time of
filing, that it has actual work in a specialty occupation available for
the beneficiary as of the start date of the validity period as
requested on the petition. New 8 CFR 214.2(h)(4)(iv)(C) complements the
revised definition of ``United States employer'' at new 8 CFR
214.2(h)(4)(ii) requiring evidence of a bona fide, non-speculative job
offer. Read together, both new provisions reinforce that speculative
employment is not permitted in the H-1B program. As stated earlier,
USCIS cannot reasonably ascertain whether the beneficiary will be
employed in a specialty occupation if the employment is
speculative.\105\ USCIS must assess the actual services to be performed
to determine whether the alien will be performing services in a
specialty occupation. That determination necessarily requires review
and analysis
[[Page 63934]]
of the actual work to be performed and cannot be based on speculation.
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\105\ Again, speculative employment should not be confused with
employment that is contingent on petition approval, visa issuance
(when applicable), and the grant of H-1B status. DHS recognizes that
employment may be actual, but contingent on petition approval and
the alien being granted H-1B status.
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Importantly, new 8 CFR 214.2(h)(4)(iv)(C) clarifies the types of
corroborating evidence petitioners must submit in third-party placement
cases. Based on USCIS' program experience, petitioners who regularly
place their workers at third-party worksites often submit
uncorroborated statements describing the role the H-1B beneficiary will
perform at the third-party worksite. Such statements, without
additional evidence, are generally insufficient to establish by a
preponderance of the evidence that the H-1B beneficiary will actually
perform work in a specialty occupation. Moreover, such uncorroborated
statements are generally insufficient to establish that the petitioner
will have and maintain an employer-employee relationship while the
beneficiary works at the third-party worksite.\106\ Therefore, where a
beneficiary will be placed at one or more third-party worksites, DHS
will require the petitioner to submit evidence such as contracts, work
orders, or other similar evidence (such as a detailed letter from an
authorized official at the third-party worksite) to establish that the
beneficiary will perform services in a specialty occupation at the
third-party worksite(s), and that the petitioner will have an employer-
employee relationship with the beneficiary. See new 8 CFR
214.2(h)(4)(iv)(C).
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\106\ See Part II.A. above, for descriptions of program
violations and other issues arising with third-party placements. See
also 144 Cong. Rec. E2323-01, E2323, 1998 WL 785735 (stating ``[t]he
employers most prone to abusing the H-1B program are called `job
contractors' or `job shops'. Much, or all, of their workforces are
composed of foreign workers on H-1B visas. Many of these companies
make no pretense of looking for American workers and are in business
to contract their H-1Bs out to other companies. The companies to
which the H-1Bs are contracted benefit in that the wages paid to the
foreign workers are often well below what comparable Americans would
receive. Also, the companies don't have to shoulder the obligations
of being the legally recognized employers-the job contractors/shops
remain the official employers'') (statement of Rep. Lamar Smith,
then chairman of the Subcommittee on Immigration and Claims).
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If submitting contracts, the petitioner should include both the
master services agreement and the accompanying work order(s),
statement(s) of work, or other similar legally-binding agreements under
different titles. These contracts should be signed by an authorized
official of the third-party entity that will use the beneficiary's
services. In general, the master services agreement (also commonly
called a supplier agreement) sets out the essential contract terms and
provides the basic framework for the overall relationship between the
parties.\107\ The work order or statement of work provides more
specific information, such as the scope of services to be performed,
details about the services, and the allocation of responsibilities
among the parties.\108\ The petitioner may also submit a detailed
letter signed by an authorized official of the ultimate end-client
company or companies where the beneficiary will actually work. Other
types of corroborating evidence may include technical documentation,
milestone tables, marketing analyses, cost-benefit analyses, brochures,
and funding documents, insofar as this evidence corroborates that the
petitioner will have an employer-employee relationship with the
beneficiary, and that the beneficiary will perform services in a
specialty occupation at the third-party worksite(s). Overall, the
totality of the evidence submitted by the petitioner must be detailed
enough to provide a sufficiently comprehensive view of the work
available and substantiate, by a preponderance of the evidence, the
terms and conditions under which the work will be performed.
Documentation that merely sets forth the general obligations of the
parties to the agreement, or which do not provide specific information
pertaining to the actual work to be performed, would generally be
insufficient.\109\
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\107\ See Sec. 49:35. Contract scope--Master services
agreement, 3 Successful Partnering Between Inside and Outside
Counsel Sec. 49:35.
\108\ See Sec. 49:37. Contract scope--Statements of work, 3
Successful Partnering Between Inside and Outside Counsel Sec.
49:37.
\109\ When requested evidence may contain trade secrets, for
example, the petitioner may redact or sanitize the relevant sections
to provide a document that is still sufficiently detailed and
comprehensive, yet does not reveal sensitive commercial information.
Although a petitioner may always refuse to submit confidential
commercial information if deemed too sensitive, the petitioner must
also satisfy the burden of proof. Cf. Matter of Marques, 16 I&N Dec.
314, 316 (BIA 1977) (``The respondent had every right to assert his
claim under the Fifth Amendment. However, in so doing he runs the
risk that he may fail to carry his burden of persuasion with respect
to his application for discretionary relief.'').
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Further, in cases where the beneficiary is staffed to a third-
party, the submitted corroborating documents should generally
demonstrate the requirements of the position as imposed by the third-
party entity (commonly referred to as the ``end-client'') that will use
the beneficiary's services. As noted in Defensor v. Meissner, if only
the petitioner's requirements are considered, ``then any beneficiary
with a bachelor's degree could be brought into the United States to
perform work in a non-specialty occupation, so long as that person's
employment was arranged through an employment agency that required all
[staffed workers] to have bachelor's degrees.'' \110\ This result would
be completely opposite of the plain purpose of the statute and
regulations, which is to limit H-1B visas to positions which require
specialized education to perform duties that require theoretical and
practical application of a body of highly specialized knowledge.\111\
However, not all third-party placements would necessarily require such
evidence. For example, where the beneficiary is placed at a third-
party's worksite, but performs work as part of a team of the
petitioner's employees, including an on-site supervisor employed by the
petitioner and who manages the work of the petitioner's employees, the
requirements of the position as established by the petitioner may be
determinative. USCIS will make the determination as to whether the
requirements of the petitioner or third-party entity are controlling on
a case-by-case basis, taking into consideration the totality of the
relevant circumstances, as described above.
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\110\ 201 F.3d at 387-88.
\111\ Id.
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Finally, new 8 CFR 214.2(h)(4)(iv)(C) will also state that, in
accordance with 8 CFR 103.2(b) and 214.2(h)(9), USCIS may request
copies of contracts, work orders, or other similar corroborating
evidence on a case-by-case basis in all cases, regardless of where the
beneficiary will be placed. While USCIS already has general authority
to request any document it deems necessary, this additional provision
will make it clear that USCIS has authority to specifically request
contracts and other similar evidence. This provision will apply to any
H-1B petition, including a petition where the petitioner indicates that
the beneficiary will exclusively work in-house. For example, if a
petitioner indicates that the beneficiary will develop system software
for a client but will perform such work exclusively at the petitioner's
premises, USCIS may request a copy of the client contract or other
corroborating evidence to confirm that the relevant work exists to
ensure that the beneficiary will be employed in a specialty occupation.
E. Maximum Validity Period for Third-Party Placements
While DHS recognizes that third-party arrangements may generally be
part of a legitimate business model, this business model presents more
challenges in the context of the H-1B program and USCIS' ability to
better ensure eligibility and compliance. Accordingly, DHS will
[[Page 63935]]
set a 1-year maximum validity period for all H-1B petitions in which
the beneficiary will be working at a third-party worksite. See new 8
CFR 214.2(h)(9)(iii)(A)(1). To make the determination of whether a
beneficiary will be working or placed at a third-party worksite, USCIS
will rely on information contained in the H-1B petition and any
accompanying LCA, which must identify each worksite where the
beneficiary will work and the name of any third-party entity (secondary
entity) at each worksite.\112\
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\112\ The Labor Condition Application for H-1B, H-1B1 and E-3
Nonimmigrant Workers Form ETA-9035CP--General Instructions for the
9035 & 9035E, defines ``secondary entity'' as ``another entity at
which or with which LCA workers will be placed during the period of
certification.'' See https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/Form%20ETA-9035CP%20Instructions.pdf.
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Although the maximum period of authorized admission for an H-1B
nonimmigrant has been established by Congress in section 214(g)(4) of
the INA, 8 U.S.C. 1184(g)(4), Congress did not specify the validity
period for an approved H-1B visa petition. Congress authorized DHS to
promulgate regulations setting the validity period, including a range
of validity periods not to exceed the maximum period of authorized
admission. Id. In relevant part, section 214(a)(1) of the INA, 8 U.S.C.
1184(a)(1), states, ``the admission to the United States of any alien
as a nonimmigrant shall be for such time and under such conditions as
the [Secretary] may by regulations prescribe . . . .'' See also section
214(c)(1) of the INA, 8 U.S.C. 1184(c)(1) (``The question of importing
any alien as [an H-1B nonimmigrant] in any specific case or specific
cases shall be determined by [DHS] . . . upon petition of the importing
employer . . . . The petition shall be in such form and contain such
information as [DHS] shall prescribe.''). Under current regulations at
8 CFR 214.2(h)(9)(iii), the maximum validity period an H-1B petition
may be approved is ``up to three years,'' which necessarily allows for
lesser periods as well. USCIS has an established practice of approving
H-1B petitions for less than 3 years for various reasons, such as to
conform to the dates of the accompanying LCA. See id. Further, DHS
regulations already limit the validity period to 1 year in cases of
temporary licensure. See 8 CFR 214.2(h)(4)(v)(C). Likewise, DHS will
now limit the validity period for third-party placement petitions to a
maximum of 1 year.
DHS believes that the 1-year limit is reasonable given the nature
of third-party placements. In general, the nature of contracting work
leads to beneficiaries being more transient, as well as greater
potential for changes to the terms and conditions of employment.
Specifically, these are situations where the petitioner is not the end-
user of the H-1B worker's services, and the beneficiary performs work
for another entity at that other entity's worksite. DHS believes that
enhanced monitoring of compliance is valuable and needed to ensure that
the beneficiary is being employed consistent with the terms and
conditions of the petition approval.\113\ The fact that 6 to 12 month
work orders are common in petitions involving third-party placements,
based on USCIS' program experience and review of evidence in such
cases,\114\ supports DHS's belief that limiting the validity period to
up to one year is reasonable as it more closely aligns with the length
of time that a beneficiary would generally be assigned under a
particular work order. It is also common based on USCIS' program
experience that, despite the requirement that the petitioner must file
an amended or new H-1B petition with the corresponding LCA when there
is a material change in the terms and conditions of employment,\115\
once a certain work order expires, a petitioner may obtain another work
order under changed terms and conditions, including a different work
location, or even assign the beneficiary to a different client, without
timely filing the required amended or new petition. Such unaccounted
changes increase the risk of violations of H-1B program requirements.
DHS believes that continuing to approve third-party petitions for
longer periods of time, including the maximum three-year validity
period, would greatly diminish USCIS' ability to properly monitor
program compliance in cases where fraud and abuse are more likely to
occur.
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\113\ This includes, among other terms and conditions, that the
petitioner is maintaining the required employer-employee
relationship with the beneficiary. Enhanced monitoring of the
employer-employee relationship is particularly important in cases
where a staffing company uses H-1B workers to fill positions
previously occupied by the petitioner's in-house employees.
\114\ See, e.g., Matter of I-S-S- LLC, Appeal of California
Service Center Decision Form I-129, Petition for a Nonimmigrant
Worker, 2017 WL 959844, at *5 (the Petitioner stated in its support
letter that ``industry convention is to issue work orders for a
short duration and continue extending them through project
completion.''); Matter of K-T-, Inc. Appeal of Vermont Service
Center Decision Form I-129, Petition for a Nonimmigrant Worker, 2019
WL 1469913, at *4 (the Petitioner asserted that contract extensions
for six-month intervals are common within the IT consulting
industry); (Identifying Information Redacted by Agency) Petition for
a Nonimmigrant Worker Pursuant to Section 101(a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. S 1101, 2013 WL 4775077,
at *8 (on appeal, counsel states that in the petitioner's industry,
it is standard to issue work orders or statements of work for short-
term project, which typically last for six to nine months, and that
it ``is neither typical nor normal for a company to have a
[statement of work] that covers a three-year period of time.'').
\115\ See 8 CFR 214.2(h)(2)(i)(E) (requiring that a petitioner
file an amended or new petition to reflect any material changes in
the terms and conditions of employment or training or the alien's
eligibility as specified in the original approved petition),
(h)(11)(i)(A) (requiring the petitioner to ``immediately notify the
[agency] of any changes in the terms and conditions of employment of
a beneficiary which may affect eligibility''); Matter of Simeio
Solutions, LLC, 26 I&N Dec. 542, 547 (AAO 2015).
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DHS considered an alternative of limiting validity periods only
when the beneficiary would ``primarily'' work at a third-party
worksite. DHS believes that this alternative would allow petitioners to
easily avoid the limited validity period provision. For example, if
``primarily'' were defined to mean more than half of the time, the
petitioner could claim that a beneficiary would not work 51% of the
time (and thus not ``primarily'') at a third-party worksite to
circumvent this limitation. This would undermine the effectiveness of
the rule. It would also create additional burdens on DHS in that it
would require adjudicators to review and evaluate evidence regarding
where a beneficiary would ``primarily'' be placed. Further, DHS
believes that excluding any location that would not require an LCA from
the definition of ``worksite'' provides sufficient flexibility in the
application of this rule.\116\ Therefore, DHS rejected the alternative
of limiting validity periods only when the beneficiary would
``primarily'' work at a third-party worksite.
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\116\ For example, DOL's definition of worksite (which DHS
adopts) excludes locations where an H-1B nonimmigrant's job
functions may necessitate frequent changes of location with little
time spent at any one location, such as jobs that are peripatetic in
nature. See 20 CFR 655.715.
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DHS believes that limiting approvals for third-party placement
petitions to a maximum of 1 year will allow the agency to more
consistently and thoroughly monitor a petitioner's and beneficiary's
continuing eligibility, including whether the beneficiary has
maintained H-1B status, whether the beneficiary's position remains a
specialty occupation (e.g., whether the terms of the contract or
placement have changed), and whether any changes in the nature of the
placement interfere with the necessary employer-employee relationship
between the petitioner and the beneficiary, through the adjudication of
more frequent petitions
[[Page 63936]]
requesting an extension of status.\117\ Additionally, it will reduce
the potential for employer violations. Based on the agency's experience
in administering the H-1B program, significant employer violations,
including placing beneficiaries in non-specialty occupation jobs, may
be more likely to occur when petitioners place beneficiaries at third-
party worksites.\118\ In many instances, the relationship between the
petitioning employer and the H-1B beneficiary is more attenuated when
the beneficiary is working at a third-party worksite. Petitioners who
contract H-1B workers out to another company at a third-party worksite
generally have less visibility into the actual work being performed,
including whether it is the appropriate work for a specialty
occupation, the hours worked, and the relationship between the
beneficiary and his or her on-site supervisor. As the GAO stated in its
2011 report to Congress, DOL's Wage and Hour investigators reported
that a large number of the complaints they received were related to the
activities of staffing companies, where the H-1B beneficiary is placed
at a third-party worksite.\119\
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\117\ The approval of a new or amended petition for a
beneficiary placed at a third-party worksite will also be limited to
a maximum of 1 year. See 8 CFR 214.2(h)(2)(i)(E); see also Matter of
Simeio Solutions, LLC, supra at 547.
\118\ U.S. Department of Homeland Security, U.S. Citizenship and
Immigration Services, Policy Research Division (2019). Summary of H-
1B Site Visits Data (showing a higher rate of noncompliance for
petitioners who indicated the beneficiary works at an off-site or
third-party location compared to worksites where the beneficiary
does not work off-site). See also, e.g., U.S. Gov't Accountability
Office, GAO-11-26, H-1B Visa Program: Reforms are Needed to Minimize
the Risks and Costs of Current Program (2011) (describing the lack
of accountability and types of common violations for staffing
companies).
\119\ GAO-11-26, supra.
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DHS believes that fraud and abuse is more likely to occur in cases
involving third-party placements, as evidenced by the higher rate of
noncompliance in those cases. Noncompliance is determined when an
immigration officer conducts a compliance review to ensure that the
petitioner (employer) and beneficiary (job applicant or other potential
employee) follow the terms and conditions of their petition.\120\ This
process includes reviewing the petition and supporting documents,
researching information in public records and government systems, and,
where possible, interviewing the petitioner and beneficiary through
unannounced site visits.\121\ DHS analyzed a sampling of H-1B petitions
filed during FYs 16-19 (through March 27, 2019) and found that the
noncompliance rate for petitioners who indicated the beneficiary works
at an off-site or third-party location is much higher compared to
worksites where the beneficiary does not work off-site (21.7 percent vs
9.9 percent).\122\ DHS believes that limiting the maximum validity
period for petitions where beneficiaries are placed at third-party
worksites is reasonable given this significantly higher noncompliance
rate, and so will also encourage compliance with the regulations and
improve the program's overall integrity.
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\120\ See U.S. Department of Homeland Security, U.S. Citizenship
and Immigration Services, Administrative Site Visit and Verification
Program (last updated Sept. 9, 2019), https://www.uscis.gov/about-us/directorates-and-program-offices/fraud-detection-and-national-security/administrative-site-visit-and-verification-program (last
visited Sept. 18, 2020).
\121\ Id.
\122\ U.S. Department of Homeland Security, U.S. Citizenship and
Immigration Services, Policy Research Division (2019). Summary of H-
1B Site Visits Data.
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When approving an H-1B petition involving third-party placement,
USCIS will generally consider granting the maximum validity period of 1
year, barring a separate consideration consistent with the controlling
statutes and DHS regulations (such as the beneficiary reaching the 6-
year maximum period of authorized admission pursuant to section
214(g)(4) of the INA, and not being eligible for an exemption from that
6-year limit) compelling a shorter approval period. This general
practice will have the added benefit of providing petitioners who
provide sufficient evidence a degree of certainty with respect to what
validity period to request and to expect, if approved. If a petitioner
indicates in the H-1B petition or LCA that the beneficiary will be
working at a third-party worksite, then the maximum validity period the
petitioner should request is 1 year. And if USCIS approves such
petition for the maximum period of 1 year after making a determination
that the petitioner has met its burden of proof, then there should be
no reason to dispute the length of the validity period since it is set
by regulation.\123\
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\123\ Note, however, that a petitioner is not precluded from
filing a motion or appeal.
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As with any petition requesting an extension of stay, a petition
requesting a 1-year extension of stay for a beneficiary who will work
at a third-party worksite may be accompanied by either a new, or a
photocopy of the prior, LCA from DOL that the petitioner continues to
have on file, provided that the LCA is still valid for the period of
time requested and properly corresponds to the petition. See 8 CFR
214.2(h)(15)(ii)(B). In this sense, a prior LCA is still valid if the
validity period does not expire before the end date of the extension
petition's requested validity period.\124\ However, note that a new LCA
is required if there are any material changes in the terms and
conditions of employment or training or the alien's eligibility as
specified in the original approved petition. See 8 CFR
214.2(h)(2)(i)(E) (requiring that a petitioner file an amended or new
petition to reflect any material changes in the terms and conditions of
employment or training or the alien's eligibility as specified in the
original approved petition, and that ``this requirement includes a new
labor condition application'').
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\124\ Because the maximum validity period of a certified LCA is
three years, see 20 CFR 655.750(a), DHS recognizes that the validity
date of the LCA and the requested validity date in the extension
petition will not always match. DHS will accept a prior LCA as long
as that LCA is still valid, as explained above.
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DHS recognizes that new 8 CFR 214.2(h)(9)(iii)(A)(1) will require
those affected petitioners to submit extension petitions more
frequently, thereby incurring more filing costs. DHS further recognizes
that some of these affected petitioners may incur significantly higher
filing costs with each extension petition, namely, the 9-11 Response
and Biometric Entry-Exit Fee (Pub. L. 114-113 Fee) of $4,000.\125\ If
the Fee Schedule Final Rule takes effect, the Public Law 114-113 Fee
would apply to any petitioner filing an H-1B petition that employs 50
or more employees in the United States if more than 50 percent of the
petitioner's employees in the aggregate are in H-1B, L-1A or L-1B
nonimmigrant status, including filing an extension of stay
request.\126\ DHS recognizes the increased cost on this population of
affected petitioners, but believes this increased cost is justified due
to the importance of better ensuring compliance with the terms and
conditions of the petition approval in these instances, as explained
above. Additionally, nothing in this rulemaking limiting the maximum
[[Page 63937]]
validity period to 1 year for H-1B aliens placed at third-party
worksites would directly result in such alien worker being unable to
obtain the statutory maximum six years of H-1B status. Instead, through
this rulemaking, petitioners with this business model will have to pay
more filing costs for the continued use of H-1B workers than they
currently do. It is valuable to note that the amount and parameters of
the Public Law 114-113 Fee is mandated by Congress. In creating the
Public Law 114-113 Fee, the goal was to impose this additional fee on
employers that overly rely on H-1B or L nonimmigrant workers.\127\
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\125\ Consolidated Appropriations Act, 2016, Public Law 114-113,
December 18, 2015, 129 Stat 2242.
\126\ Presently, the Public Law 114-113 fee is required for H-1B
petitions filed by certain petitioners only when the Fraud Fee also
applies, meaning that it is not currently required for H-1B
extensions. The Fee Schedule Final Rule will require payment of the
Public Law 114-113 fee for all H-1B petitions filed by those
petitioners, unless the petition is an amended petition without an
extension of stay request. While implementation of the Fee Schedule
Final Rule has been enjoined, DHS nevertheless estimates costs of
this interim final rule based on the fees that will be required if
the injunction is lifted and the Fee Schedule Final Rule takes
effect so as to avoid underestimating potential costs of this
interim final rule. See supra note 9.
\127\ 85 FR at 46867.
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F. Written Explanation for Certain H-1B Approvals
DHS is amending its regulations to require its issuance of a brief
explanation when an H-1B nonimmigrant petition is approved but USCIS
grants an earlier end validity date than requested by the petitioner.
See new 8 CFR 214.2(h)(9)(i)(B). Providing such an explanation will
help ensure that the petitioner is aware of the reason for the limited
validity approval.
G. Revising the Itinerary Requirement for H-1B Petitions
DHS is revising the itinerary requirement at 8 CFR
214.2(h)(2)(i)(B) (for service or training in more than one location)
to specify that this particular provision will not apply to H-1B
petitions. See new 8 CFR 214.2(h)(2)(i)(B). DHS is making this revision
in response to a recent court decision specific to H-1B petitions.\128\
The itinerary requirement at 8 CFR 214.2(h)(2)(i)(B) will still apply
to other H classifications. In addition, DHS will still apply the
itinerary requirement at 8 CFR 214.2(h)(2)(i)(F)(1) for H-1B petitions
filed by agents.
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\128\ See ITServe, 2020 WL 1150186, at *21 (``the itinerary
requirement in the INS 1991 Regulation [codified at 8 CFR
214.2(h)(2)(i)(B)] . . . has been superseded by statute and may not
be applied to H-1B visa applicants'').).
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H. Site Visits
Pursuant to its general authority under sections 103(a) and 287(b)
of the INA, 8 U.S.C. 1103(a) and 1357(b), and 8 CFR 2.1, USCIS conducts
inspections, evaluations,-verifications, and compliance reviews to
ensure that an alien is eligible for the benefit sought and that all
laws have been complied with before and after approval of such
benefits. These inspections and other compliance reviews may be
conducted telephonically or electronically, as well as through physical
on-site inspections (site visits). The existing authority to conduct
inspections is vital to the integrity of the immigration system as a
whole, including the H-1B program specifically, and protecting American
workers. In this rule, DHS is adding regulations specific to the H-1B
program to codify its existing authority and clarify the scope of
inspections--particularly on-site inspections--and the consequences of
a petitioner's or third party's refusal or failure to fully cooperate
with these inspections.\129\ See new 8 CFR 214.2(h)(4)(i)(B)(7). The
authority of USCIS to conduct on-site inspections or other compliance
reviews to verify information does not relieve the petitioner of its
burden of proof or responsibility to provide information in the
petition (and evidence submitted in support of the petition) that is
complete, true, and correct.
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\129\ Although DHS is only revising H-1B regulations at this
time, DHS reiterates that it has the same authority to conduct on-
site inspections and other compliance reviews for other nonimmigrant
and immigrant categories.
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In 2008, USCIS conducted a review of 246 randomly selected H-1B
petitions filed between October 1, 2005, and March 31, 2006, and found
violations ranging from ``document fraud to deliberate misstatements
regarding job locations, wages paid, and duties performed'' in 20.7
percent of the cases reviewed.\130\ Following this, in July 2009, USCIS
started the Administrative Site Visit and Verification Program as an
additional way to verify information in certain visa petitions. Under
this program, USCIS Fraud Detection and National Security (FDNS)
officers make unannounced site visits to collect information as part of
a compliance review. A compliance review verifies whether petitioners
and beneficiaries are following the immigration laws and regulations
that are applicable in a particular case. This process includes
researching information in government databases, reviewing public
records and evidence accompanying the petition, and interviewing the
petitioner and beneficiary.\131\ It also includes conducting site
visits.
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\130\ Written Testimony of Donald Neufeld, Associate Director,
Service Center Operations Directorate, USCIS (March 31, 2011),
available at https://www.uscis.gov/sites/default/files/USCIS/Resources/Congress/Testimonies/2011/testimony_2011331_H-1B_Neufeld.pdf.
\131\ Outside of the Administrative Site Visit and Verification
Program, USCIS conducts forms of compliance review in every case,
whether it is by researching information in relevant government
databases or by reviewing public records and evidence accompanying
the petition.
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In addition, beginning in 2017, USCIS began taking a more targeted
approach in conducting site visits related to the H-1B program. USCIS
started focusing on H-1B-dependent employers (those who have a high
ratio of H-1B workers as compared to U.S. workers, as defined in
section 212(n) of the INA), cases in which USCIS cannot validate the
employer's basic business information through commercially available
data, and employers petitioning for H-1B workers who work off-site at
another company or organization's location.
The site visits conducted by USCIS through the Administrative Site
Visit and Verification Program have uncovered a significant amount of
noncompliance in the H-1B program. From Fiscal Year (FY) 2013 through
FY 2016, USCIS conducted 30,786 H-1B compliance reviews. Of those,
3,811 (12 percent) were found to be noncompliant.\132\ From FY 2016
through March 27, 2019, USCIS conducted 20,492 H-1B compliance reviews
and found 2,341 (11.4 percent) to be noncompliant.\133\ Further, DHS
analyzed the results of the compliance reviews from FY16-FY19 and found
that the noncompliance rate for petitioners who indicated the
beneficiary works at an off-site or third-party location is much higher
compared to worksites where the beneficiary does not work off-site
(21.7 percent versus 9.9 percent, respectively).\134\
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\132\ USCIS, Fiscal Year 2017 Report to Congress: H-1B and L-1A
Compliance Review Site Visits, Fraud Detection and National Security
Compliance Review Data (October 1, 2012 to September 30, 2016), p. 7
(January 17, 2018), available at https://www.dhs.gov/sites/default/files/publications/USCIS%20-%20H-1B%20and%20L-1A%20Compliance%20Review%20Site%20Visits.pdf (last visited Aug. 11,
2020).
\133\ Department of Homeland Security, U.S. Citizenship and
Immigration Services, Policy Research Division (PRD) (2019). Summary
of H-1B Site Visits Data.
\134\ Id.
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Site visits are important to maintaining the integrity of the H-1B
program and in detecting and deterring fraud and noncompliance with H-
1B program requirements.\135\ By better
[[Page 63938]]
ensuring program integrity and detecting and deterring fraud and
noncompliance, DHS will better ensure that the H-1B program is used
appropriately and that the economic interests of U.S. workers are
protected. Therefore, as noted above, DHS is adding regulations
specific to the H-1B program to set forth the scope of on-site
inspections and the consequences of a petitioner's or third party's
refusal or failure to fully cooperate with these inspections. The new
regulations make clear that inspections may include, but are not
limited to, an on-site visit of the petitioning organization's
facilities, interviews with its officials, review of its records
related to compliance with immigration laws and regulations, and
interviews with any other individuals or review of any other records
that USCIS may lawfully obtain and that it considers pertinent to
verify facts related to the adjudication of the H-1B petition, such as
facts relating to the petitioner's and beneficiary's H-1B eligibility
and compliance. See new 8 CFR 214.2(h)(4)(i)(B)(7)(i). The new
regulation also clarifies the possible scope of an inspection, which
may include the petitioning organization's headquarters, satellite
locations, or the location where the beneficiary works or will work,
including third-party worksites, as applicable. DHS believes that the
ability to inspect various locations is critical since the purpose of a
site inspection is to confirm information related to the H-1B petition,
and any one of these locations may have information relevant to a given
petition.
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\135\ DHS acknowledges the 2017 Office of Inspector General
report that addressed concerns with the H-1B site visit program and
made recommendations for improvement. OIG-18-03, supra. Since the
issuance of this report, USCIS has greatly improved its site visit
program pursuant to the report's recommendations, such that USCIS
believes the concerns addressed in the 2017 report no longer
pertain. Specifically, the report's assessment that ``USCIS site
visits provide minimal assurance that H-1B visa participants are
compliant and not engaged in fraudulent activity'' no longer
pertains. As of March 31, 2019, the recommendations have been
resolved. See DHS, Office of Inspector General, DHS Open Unresolved
Recommendations Over Six Months Old, as of March 31, 2019, https://www.oig.dhs.gov/sites/default/files/DHS-Open-Recommendations-As-Of-033119_053019.pdf (not listing OIG-18-03 as an ``open unresolved''
report). DHS maintains that site visits, generally, are an important
and effective tool for the H-1B program. The new site visit
provisions at 8 CFR 214.2(h)(4)(i)(B)(7)(i) will directly support
USCIS' continued efforts to strengthen the effectiveness of the site
visit program and the integrity of the H-1B program overall.
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The new regulation also states that, if USCIS is unable to verify
facts related to an H-1B petition or to compliance with H-1B petition
requirements due to the failure or refusal of the petitioner or third-
party to cooperate with a site visit,\136\ then such failure or refusal
may be grounds for denial or revocation of any H-1B petition for H-1B
workers performing services at the location or locations which are a
subject of inspection, including any third-party worksites. See new 8
CFR 214.2(h)(4)(i)(B)(7)(iii). This new provision will put petitioners
on notice of the specific consequences for noncompliance, whether by
them or by a contractual third-party. It has long been established
that, in H-1B visa petition proceedings, it is the petitioner's burden
to establish eligibility for the immigration benefit sought.\137\ If
USCIS conducts a site visit in order to verify facts related to the H-
1B petition or to verify that the beneficiary is being employed
consistent with the terms of the petition approval, and is unable to
verify relevant facts and otherwise confirm compliance, then DHS
believes that it would be reasonable to conclude that the petitioner
will not have met its burden of proof and the petition may be properly
denied or revoked. This would be true whether the unverified facts
relate to a petitioner worksite or a third-party worksite at which a
beneficiary has been or will be placed by the petitioner. It would also
be true whether the failure or refusal to cooperate is by the
petitioner or a third-party.
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\136\ In the context of a FDNS field inquiry, failure to
cooperate means that contact with the petitioner or third party was
made, the FDNS officer had the chance to properly identify her/
himself, and the petitioner or third party refused to speak to the
officer or agreed to speak, but did not provide the information
requested within the time period specified.
\137\ See section 291 of the INA, 8 U.S.C. 1361; Matter of
Otiende, 26 I&N Dec. 127, 128 (BIA 2013).
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In addition, with respect to a failure or refusal to cooperate by a
third-party, DHS believes this provision is reasonable because the
third-party is benefiting from the services performed by the H-1B
worker at its location. The third-party should not be permitted to
benefit from the services performed by the H-1B worker if it
simultaneously refuses to allow DHS access to verify that those
services are being performed in accordance with the law. Additionally,
if this provision did not apply to third-party worksites, such that a
third-party's failure to cooperate with a site visit could not be
grounds for denial or revocation, then this would create an unfair
loophole with respect to third-party worksites, which could be
exploited by unscrupulous petitioners and undermine the integrity of
the H-1B program.
As with all other new provisions in this interim final rule, new 8
CFR 214.2(h)(4)(i)(B)(7)(iii) will apply to petitions filed on or after
the effective date of the regulation. If, for example, a third-party
refuses to cooperate with a site visit conducted after the effective
date of the regulation, but in connection with a petition that was
filed before the effective date of the regulation, USCIS will make a
final decision on that petition under the legal framework in effect at
the time the petition was filed.
I. Severability
Finally, DHS has added a clause to clarify its intent with respect
to the provisions being amended or added by this rule; DHS intends that
all the provisions covered by this rule function separately from one
another and be implemented as such. Therefore, in the event of
litigation or other legal action preventing the implementation of some
aspect of this rule, DHS intends to implement all others to the
greatest extent possible.
VI. Statutory and Regulatory Requirements
A. Administrative Procedure Act
The COVID-19 pandemic is an unprecedented ``economic cataclysm.''
\138\ This is one of the direst national emergencies the United States
has faced in its history. In just one week, unemployment claims
skyrocketed from ``a historically low number'' to the most extreme
unemployment ever recorded: Nearly quintuple the previous worst-ever
level of unemployment claims, observed during the 1982 recession.\139\
DHS must respond to this emergency immediately.
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\138\ Ben Casselman et al., New Data Shows Staggering Toll of
Outbreak, N.Y. Times, Mar. 27, 2020, at A1.
\139\ Front Page of the New York Times, N.Y. Times, Mar. 27,
2020, at A1; Casselman et al., supra note 140, at A1. See also id.
tbl. 1.
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Accordingly, this rule is being issued without prior notice and
opportunity to comment pursuant to 5 U.S.C. 553(b)(B). The
Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., authorizes an
agency to issue a rule without prior notice and opportunity to comment
when the agency for good cause finds that those procedures are
``impracticable, unnecessary, or contrary to the public interest.'' 5
U.S.C. 553(b)(B). The good cause exception for forgoing notice and
comment rulemaking ``excuses notice and comment in emergency
situations, . . . or where delay could result in serious harm.'' Jifry
v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004). Although the good cause
exception is ``narrowly construed and only reluctantly countenanced,''
the Department has appropriately invoked the exception in this case,
for the reasons set forth below.\140\
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\140\ Tenn. Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1144 (D.C.
Cir. 1992) (quoting New Jersey v. EPA, 626 F.2d 1038, 1046 (D.C.
Cir.1980)).
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The pandemic emergency's economic impact is an ``obvious and
compelling fact'' that justifies good cause to forgo regular notice and
comment. Such good cause is ``justified by obvious and compelling facts
that can be judicially noticed.'' Mobil Oil Corp. v. Dep't of Energy,
728 F.2d 1477, 1490 (Temp. Emer. Ct. App. 1983).
The reality of the COVID-19 national emergency is omnipresent and
[[Page 63939]]
undeniable. In addition to ``obvious and compelling facts'' known to
virtually all Americans during this pandemic, multiple executive orders
and declarations further establish the fact of a ``crisis,'' ``fiscal
calamity,'' and unprecedented national emergency. Sorenson Commc'ns
Inc. v. F.C.C., 755 F.3d 702, 707 (D.C. Cir. 2014) (``Though no
particular catechism is necessary to establish good cause, something
more than an unsupported assertion is required.''). Good cause to forgo
notice and comment in this instance is consistent with the principle
that ``use of these exceptions by administrative agencies should be
limited to emergency situations.'' Am. Fed'n of Gov't Emp., AFL-CIO v.
Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981). ``Emergencies, though not
the only situations constituting good cause, are the most common.''
Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1484 n.2 (9th Cir.
1992).
On January 31, 2020, the Secretary of Health and Human Services
declared a public health emergency under section 319 of the Public
Health Service Act in response to COVID-19.\141\ On March 13, 2020,
President Trump declared a National Emergency concerning the COVID-19
outbreak, retroactive to March 1, 2020, to control the spread of the
virus in the United States.\142\ On June 4, the President issued the
E.O. 13927 Accelerating the Nation's Economic Recovery from the COVID-
19 Emergency by Expediting Infrastructure Investments and Other
Activities, which among other things urges agencies to ``take all
appropriate steps to use their lawful emergency authorities and other
authorities to respond to the national emergency and to facilitate the
Nation's economic recovery . . . [including] other actions . . . that
will strengthen the economy and return Americans to work.'' \143\ On
June 22, 2020, the President issued a Proclamation Suspending Entry of
Aliens Who Present a Risk to the U.S. Labor Market Following the
Coronavirus Outbreak.\144\ On June 29, 2020, the President issued
further clarification in a Proclamation on Amendment to Proclamation
10052.\145\ Subject to certain exceptions, the proclamation, as
amended, restricts the entry of certain immigrants and nonimmigrants,
including certain H-1B nonimmigrants, into the United States through
December 31, 2020 as their entry would be detrimental to the interests
of the United States. The proclamation notes that ``between February
and April of 2020 . . . more than 20 million United States workers lost
their jobs in key industries where employers are currently requesting
H-1B and L workers to fill positions.'' While the proclamation only
restricts new entries (with certain exceptions) by aliens who do not
have H-1B visas or other listed travel documents on the effective date
of the proclamation, Section 5 of the proclamation directs the
Secretary of Homeland Security to ``as soon as practicable, and
consistent with applicable law, consider promulgating regulations or
take other appropriate action regarding . . . ensuring that the
presence in the United States of H-1B nonimmigrants does not
disadvantage United States workers.'' The issuance of this interim
final rule to strengthen the integrity of the H-1B nonimmigrant visa
program is thus also consistent with the aims of the new proclamation.
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\141\ HHS, Determination that a Public Health Emergency Exists,
https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx (last reviewed Aug. 11, 2020). See also HHS, Determination
of Public Health Emergency, 85 FR 7316 (Feb. 7, 2020).
\142\ Proclamation 9994 of March 13, 2020, Declaring a National
Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85
FR 15337 (Mar. 18, 2020). See also White House, Proclamation on
Declaring a National Emergency Concerning the Novel Coronavirus
Disease (COVID- 19) Outbreak, https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/ (last
visited Aug. 11, 2020).
\143\ See Executive Order 13927, Accelerating the Nation's
Economic Recovery from the COVID-19 Emergency by Expediting
Infrastructure Investments and Other Activities, 85 FR 35165, sec. 2
(Jun. 9, 2020).
\144\ Proclamation 10052 of June 22, 2020, Suspension of Entry
of Immigrants and Nonimmigrants Who Present a Risk to the United
States Labor Market During the Economic Recovery Following the 2019
Novel Coronavirus Outbreak, 85 FR 38263 (Jun. 25, 2020).
\145\ Proclamation 10054 of June 29, 2020, Amendment to
Proclamation 10052, 85 FR 40085 (Jul. 2, 2020).
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H-1B workers comprise a much larger share of the U.S. labor market
than the 65,000 annual numerical limitations and therefore have the
potential to impact the availability of job opportunities for similarly
situated U.S. workers who may be competing for jobs with H-1B workers
as well as their wages and working conditions, particularly in
industries where H-1B workers are predominantly employed. In recent
years, the overwhelming majority of H-1B petitions have been filed for
positions in the one industry, the IT industry--the share of H-1B
workers in computer-related occupations grew from 32 percent in FY 2003
to 56 percent in FY2019.\146\ The 5-year average annual number of H-1B
petitions approved outside the numerical limitations established by
Congress, which includes petitions for continuing H-1B workers who were
previously counted toward an annual numerical allocation and who have
time remaining on their 6-year period of authorized admission, see INA
section 214(g)(7), 8 U.S.C. 1184(g)(7), was approximately 214,371 based
on DHS data.\147\ As of September 30, 2019, the total H-1B authorized-
to-work population was approximately 583,420.\148\ The total H-1B
authorized-to-work population, rather than the yearly cap, is more
indicative of the scope of the H-1B program and the urgent need to
strengthen it to protect the economic interests of U.S. workers. This
is particularly urgent given the exceptionally high unemployment rate
in the United States--10.2 percent as of August 7, 2020.\149\ In
addition to high unemployment generally, there has been a significant
jump in unemployment due to COVID-19 between August 2019 and August
2020 in two industry sectors where a large number of H-1B workers are
employed, from 4.7 percent to 8.6 percent in the Information sector,
and from 3.2 to 7.2 percent in the Professional and Business Services
sector.\150\
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\146\ See supra note 1.
\147\ Office of Policy and Strategy, Policy Research Division
(PRD) Claims 3 and USCIS analysis. July 29, 2020.
\148\ See supra note 11.
\149\ U.S. Dep't of Labor, Bureau of Labor Statistics, Economic
News Release, Employment Situation News Release (Aug. 7, 2020),
available at https://www.bls.gov/news.release/archives/empsit_08072020.htm (last visited Aug. 11, 2020).
\150\ See, e.g., U.S. Dep't of Labor, Bureau of Labor
Statistics, Economic News Release, Table A-14. Unemployed Persons by
Industry and Class of Worker, Not Seasonally Adjusted (last modified
Sept. 23, 2020), available at https://www.bls.gov/news.release/empsit.t14.htm (last visited Sept. 29, 2020); United States Census
Bureau, Industry and Occupation Code Lists & Crosswalks, Census 2017
Industry List with Crosswalk, available at https://www.census.gov/topics/employment/industry-occupation/guidance/code-lists.html (last
visited Aug. 11, 2020). ``Information'' sector includes internet
publishing and broadcasting and web search portals, and Data
processing, hosting, and related services. ``Professional and
Business Services, i.e. Professional, Scientific, and Management,
and Administrative and Waste Management Services'' includes Computer
systems design and related services, and Management, scientific, and
technical consulting services.
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The changes being made through this rule clarify statutory
requirements and limit the potential for fraud and abuse in the H-1B
program, thereby protecting the wages, working conditions, and job
opportunities of U.S. workers, while continuing to provide U.S.
employers with access to qualified workers consistent with
congressional intent. Namely, this rule clarifies the requirements for
petitioners to prove that H-1B workers will be employed in a specialty
occupation, as required by 8 U.S.C. 1182(i). This requirement is
[[Page 63940]]
intended to ensure that the H-1B classification is used as intended by
Congress while ensuring that H-1B workers are not negatively affecting
U.S. workers. The rule revises the definition of ``United States
employer'' and defines the term ``employer-employee relationship'' to
more clearly establish what it means for the petitioner to be a U.S.
employer for purposes of H-1B petition eligibility. In addition, the
rule limits the petition validity period for third-party placements to
a maximum of 1 year. Finally, this rule includes consequences for the
failure to comply with USCIS site visits--one of the key ways in which
USCIS verifies information provided by the petitioner and ensures
compliance with statutory and regulatory requirements. The rule makes
clear that if USCIS is denied access to a worksite to conduct a site
visit, USCIS can deny or revoke any H-1B petition for workers
performing services at that worksite. These changes cumulatively limit
the potential for fraud and abuse, particularly in third-party worksite
cases, and better ensure that petitioners have insight into and a
tangible connection to the work H-1B beneficiaries will be doing in
order to ensure that H-1B beneficiaries will be employed by the
petitioning employers in specialty occupations to fill structural skill
and employment gaps in the U.S. labor force. Given exceptionally high
unemployment in the United States--highest since the Great
Depression,\151\ including in the industries where a large share of H-
1B workers is employed--these regulatory changes are urgently needed to
ensure that the Nation continues toward economic recovery without
disadvantaging U.S. workers.
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\151\ Andrew Soergel, Unemployment Highest Since Great
Depression as Coronavirus Collapses Labor Market, U.S. News & World
Report, May 8, 2020, https://www.usnews.com/news/national-news/articles/2020-05-08/unemployment-highest-since-great-depression-as-coronavirus-collapses-labor-market.
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Courts have found ``good cause'' under the APA when an agency is
moving expeditiously to avoid significant economic harm to a program,
program users, or an industry. For example, an agency may rely upon the
good-cause exception to address ``a serious threat to the financial
stability of [a government] benefit program,'' Nat'l Fed'n of Fed.
Emps. v. Devine, 671 F.2d 607, 611 (D.C. Cir. 1982), and ``[c]ourts
have upheld a `good cause' exception when notice and comment could
result in serious damage to important interests. Id. at 611-12.
Here, delay in responding to the COVID-19 economic emergency and
its cataclysmic unemployment crisis threatens a ``weighty, systemic
interest'' that this rule protects: Ensuring the employment of H-1B
workers is consistent with the statutory requirements for the program
and thus is not disadvantaging U.S. workers. Mack Trucks, Inc. v.
E.P.A., 682 F.3d 87, 94 (D.C. Cir. 2012). Already, the impact of the
COVID-19 unemployment crisis is projected to last a decade.\152\ Loss
or prolonged lack of employment reduces or eliminates an unemployed
person's income, and therefore has the tendency to reduce that person's
demand for goods and services as a consumer. This reduced demand can
cause further job losses among the producers that would otherwise
supply the unemployed person's demands. Therefore, the faster the
United States can address high unemployment, the better it can protect
future employment. But the slower unemployment recovers in the present,
the longer it will languish into the future. Good cause to forego
notice and comment rulemaking in this case is ``an important safety
valve to be used where delay would do real harm.'' U.S. Steel Corp. v.
E.P.A., 595 F.2d 207, 214 (5th Cir. 1979). Each effort to strengthen
the United States labor market for U.S. workers during this emergency,
however marginal in isolation, is necessary to accomplish the goal of
facilitating an economic recovery in the aggregate.
---------------------------------------------------------------------------
\152\ See, e.g., Annekin Tappe, Unemployment rate won't recover
for the next decade, CBO projects, CNN, July 2, 2020, https://www.cnn.com/2020/07/02/economy/congressional-budget-office-projections-economy/index.html; Congressional Budget Office, An
Update to the Economic Outlook: 2020 to 2030 (July 2, 2020),
available at https://www.cbo.gov/system/files/2020-07/56442-CBO-update-economic-outlook.pdf (last visited Aug. 11, 2020).
---------------------------------------------------------------------------
Furthermore, the relatively limited scope of this rule also
conforms it to the proper application of the ``good cause'' exception.
First, this rule operates as an interim rule, not yet a final rule, and
thus may be subject to change in the future. ``[T]he interim status of
the challenged rule is a significant factor'' favoring the good cause
``determination.'' Mid-Tex Elec. Co-op., Inc. v. F.E.R.C., 822 F.2d
1123, 1132 (D.C. Cir. 1987). Second, the rule only affects several
discrete aspects of the H-1B program, as discussed above.``[T]he less
expansive the interim rule, the less the need for public comment.''
Tennessee Gas Pipeline Co. v. F.E.R.C., 969 F.2d 1141, 1144 (D.C. Cir.
1992) (citing AFL-CIO v. Block, 655 F.2d at 1156). ``The more expansive
the regulatory reach of these rules, of course, the greater the
necessity for public comment.'' 655 F.2d at 1156.
Therefore, consistent with the above authorities, the Department is
bypassing notice and comment requirements of 5 U.S.C. 553(b) and (c) to
urgently respond to the COVID-19 resulting economic crises, including
high unemployment. Instead of amending its regulations through notice
and comment rulemaking which is generally a lengthy process, DHS is
taking post-promulgation comments and providing a 60-day delayed
effective date to ensure that the regulated public has advanced notice
to adjust to these regulatory changes.
B. Executive Orders 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and Executive
Order 13771 (Reducing Regulation and Controlling Regulatory Costs)
Executive Orders (E.O.) 12866 and 13563 direct agencies to assess
the costs, benefits, and transfers of available alternatives, and if
regulation is necessary, to select regulatory approaches that maximize
net benefits, including potential economic, environmental, public
health and safety effects, distributive impacts, and equity. E.O. 13563
emphasizes the importance of quantifying both costs and benefits, of
reducing costs, of harmonizing rules, and of promoting flexibility.
Pursuant to E.O. 12866 (Regulatory Planning and Review), the Office of
Information and Regulatory Affairs (OIRA), of the Office of Management
and Budget has determined that this is an economically significant
regulatory action. However, OIRA has waived review of this regulation
under E.O. 12866, section 6(a)(3)(A).
1. Summary of Economic Impacts
DHS is amending its regulations governing H-1B specialty occupation
nonimmigrant workers in this interim final rule. DHS is implementing a
number of revisions and clarifications to better ensure that each H-1B
nonimmigrant worker will be working for a qualified petitioner and in a
job which meets the statutory definition of specialty occupation, and
to help protect the wages and working conditions of U.S. workers while
improving the integrity of the H-1B program. This interim final rule
amends the relevant sections of DHS regulations to reflect these
changes.
For this analysis, DHS uses the term ``H-1B petition'' or ``Form I-
129 H-1B'' to generally refer to the historical Form I-129 (H
Classification Supplement, H-1B and H-1B1 data collection) and the
planned Form I-129H1 that may replace the historical form. Where it is
more
[[Page 63941]]
accurate to specifically refer to the Form I-129H1 that will take
effect if the Fee Schedule Final Rule takes effect, DHS uses the term
``Form I-129H1.'' \153\
---------------------------------------------------------------------------
\153\ DHS estimates the costs and benefits of this rule using
the newly published U.S. Citizenship and Immigration Services Fee
Schedule and Changes to Certain Other Immigration Benefit Request
Requirements, final rule (``Fee Schedule Final Rule''), and
associated form changes, as the baseline. 85 FR 46788 (Aug. 3,
2020). The Fee Schedule Final Rule was scheduled to go into effect
on October 2, 2020. On September 29, 2020, the U.S. District Court
for the Northern District of California issued a nationwide
injunction, which prevents DHS from implementing the Fee Schedule
Final Rule. See, Immigrant Legal Resource Center v. Wolf, No. 4:20-
cv-5883 (N.D. Cal. Sept. 29, 2020). DHS intends to vigorously defend
this lawsuit and is not changing the baseline for this rule as a
result of the litigation. Should DHS not prevail in the Fee Schedule
Final Rule litigation, this rule may reflect overstated transfers,
costs, and opportunity costs associated with the filing of the Form
I-129.
---------------------------------------------------------------------------
For the 10-year implementation period of the rule (FY2021 to
FY2030), DHS estimates the annual net societal costs to be $51,406,937
(undiscounted) in FY2021, $416,212,496 (undiscounted) in FY2022,
$541,795,976 (undiscounted) from FY2023 to FY2027 each year,
$388,592,536 (undiscounted) from FY2028 to FY2030 each year. DHS
estimates the annualized net societal costs of the rule to be
$430,797,915, annualized at 3-percent and $425,277,621, annualized at
7-percent discount rates.
Table 1 provides a detailed summary of the regulatory changes and
their impacts.
Table 1--Summary of Provisions and Impacts of the Interim Final Rule
----------------------------------------------------------------------------------------------------------------
Description of change Estimated costs of Estimated benefits of
Provision to provision provisions provisions
----------------------------------------------------------------------------------------------------------------
(a) Revising the regulatory The changes in the Form Quantitative: Quantitative:
definition and standards for I-129H1 result in Petitioners-- Petitioners--
specialty occupation so they align additional time to $24,949,861 None.
more closely with the statutory complete and file Form costs annually for DHS/USCIS--
definition of the term. I-129H1 as compared to petitioners completing None.
the time burden to and filing Form I-129H1 Qualitative:
complete the current petitions with an Petitioners--
Form I-129. The time additional time burden None.
burden will change to of 30 minutes. DHS/USCIS--
4.5 hours from the DHS/USCIS-- By reducing
current 4.0 hours. DHS None. uncertainty and
applies the additional Qualitative: confusion surrounding
time burden to Petitioners-- disparities between
complete and file Form None. the statute and the
1-129H1 (0.5 hours per DHS/USCIS-- regulations, this rule
petition). None. will better ensure
that approvals are
only granted for
positions adhering
more closely to the
statutory definition.
This rule will also
result in more
complete petitions and
allow for more
consistent and
efficient adjudication
decisions.
(b) Requiring corroborating evidence The petitioner must Quantitative: Quantitative:
of work in a specialty occupation 8 establish, at the time Petitioners-- Petitioners--
CFR 214.2(h)(4)(iv). of filing, that it has $17,963,871 in None.
actual work in a costs annually to DHS/USCIS--
specialty occupation petitioners to submit None.
available for the contractual documents, Qualitative:
beneficiary as of the work orders, or similar Petitioners--
start date of the evidence required by None.
validity period as this rule to establish DHS/USCIS--
requested on the an employer-employee Written
petition. In addition, relationship and evidentiary
all H-1B petitions for qualifying employment. requirements would
beneficiaries who will DHS/USCIS-- serve the critical
be placed at a third- None. purpose of informing
party worksite must Qualitative: USCIS of the terms and
submit evidence Petitioners-- conditions of the work
showing that the None. to be performed.
beneficiary will be DHS/USCIS--
employed in a None.
specialty occupation,
and that the
petitioner will have
an employer-employee
relationship with the
beneficiary. USCIS may
request copies of
contracts, work
orders, or other
similar corroborating
evidence on a case-by-
case basis in all
cases, regardless of
where the beneficiary
will be placed.
[[Page 63942]]
(c) Codifying in regulations DHS is clarifying that Quantitative: Quantitative:
existing authority to conduct site inspections and other Petitioners-- Petitioners--
visits and other compliance compliance reviews may $1,042,702 None.
reviews, and clarifying include, but are not annually for the total DHS/USCIS--
consequences for failure to allow a limited to, a visit of annual opportunity cost None.
site visit 8 CFR the petitioning of time for worksite Qualitative:
214.2(h)(4)(i)(B)(7). organization's inspections of H-1B Petitioners--
facilities, interviews petitions. None.
with its officials, DHS/USCIS-- DHS/USCIS--
review of its records None. Conducting on-site
related to compliance Qualitative: inspections and other
with immigration laws Petitioners-- compliance reviews is
and regulations, and None. critical to detecting
interviews with any DHS/USCIS-- and deterring fraud
other individuals or None. and noncompliance.
review of any other Failure or refusal of
records that USCIS the petitioner or
considers pertinent to third-party worksite
the petitioner's H-1B parties to cooperate
eligibility and in a site visit or
compliance. An verify facts may be
inspection may be grounds for denial or
conducted at locations revocation of any H-1B
including the petition for workers
petitioning performing services at
organization's locations which are a
headquarters, subject of inspection,
satellite locations, including any third-
or the location where party worksites.
the beneficiary works
or will work,
including third-party
worksites, as
applicable.
(d) Eliminating the general This provision change Quantitative: Quantitative:
itinerary requirement for H-1B eliminates the general Petitioners-- Petitioners--
petitions 8 CFR 214.2(h)(2)(i)(B). itinerary requirement None. Cost savings
for H-1B petitions. DHS/USCIS-- $4,490,968 annually.
None. Total cost
Qualitative: savings over 10-year
Petitioners-- ranges.
None. DHS/USCIS--
DHS/USCIS-- None.
None. Qualitative:
Petitioners--
None.
DHS/USCIS--
None.
(e) Limiting maximum validity period Under current Quantitative: Quantitative:
for third-party placement 8 CFR regulations at 8 CFR Petitioners-- Petitioners--
214.2(h)(9)(iii)(A)(1). 214.2(h)(9)(iii), the Costs $0 in None.
maximum validity FY2021, $376,747,030 in DHS/USCIS--
period an H-1B FY2022, $502,330,510 in None.
petition may be FY2023-FY2027 each Qualitative:
approved is ``up to year, $349,127,070 in Petitioners--
three years''. While FY2028-FY2030 each year None.
the maximum validity for the increasing Form DHS/USCIS--
period for a specialty I-129H1 petitions to USCIS would
occupation worker is request authorization have greater oversight
currently 3 years, to continue H-1B for those H-1B
this interim final employment for workers petitions most likely
rule will limit the placed at third-party to involve fraud and
maximum validity worksites. abuse, thereby
period to 1 year for DHS/USCIS-- strengthening the H-1B
workers placed at None. program.
third-party worksites. Qualitative:
This provision will Petitioners--
result in more None.
extension petitions DHS/USCIS--
from petitioners with None.
beneficiaries who work
at third-party
worksites.
(f) Providing a Written Explanation DHS will revise the Quantitative: Quantitative:
for Certain H-1B Limited Approvals regulations to require Petitioners-- Petitioners--
8 CFR 214.2(h)(9)(i). issuance of a brief None. None.
explanation when an H- DHS/USCIS-- DHS/USCIS--
1B nonimmigrant None. None.
petition is approved Qualitative: Qualitative:
but USCIS grants an Petitioners-- Petitioners--
earlier validity None. Providing a
period end date than DHS/USCIS-- written explanation
requested by the None. for limited validity
petitioner. period will help
ensure that the
petitioner is aware of
the reason for shorter
validity periods.
DHS/USCIS--
None.
[[Page 63943]]
(g) Familiarization Cost............ Familiarization costs Quantitative: Quantitative:
comprise the Petitioners-- Petitioners--
opportunity cost of One-time cost None.
the time spent reading of $11,941,471 in DHS/USCIS--
and understanding the FY2021. None.
details of a rule in DHS/USCIS-- Qualitative:
order to fully comply None. Petitioners--
with the new Qualitative: None.
regulation(s). Petitioners-- DHS/USCIS--
None. None.
DHS/USCIS--
None.
----------------------------------------------------------------------------------------------------------------
In addition to the impacts summarized above, Table 2 presents the
accounting statement and as required by Circular A-4.\154\
---------------------------------------------------------------------------
\154\ White House, Office of Management and Budget, Circular A-4
(Sept. 17, 2003), available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf (last visited Aug. 11,
2020).
Table 2--OMB A-4 Accounting Statement
[$, 2019 for FY2021-FY2030]
----------------------------------------------------------------------------------------------------------------
Minimum Maximum
Category Primary estimate estimate estimate Source citation
----------------------------------------------------------------------------------------------------------------
BENEFITS
----------------------------------------------------------------------------------------------------------------
Annualized Monetized Benefits (3 percent) N/A...... N/A N/A RIA.
(discount rate in parenthesis).
(7 percent) N/A...... N/A N/A RIA.
-------------------------------------------------------
Annualized quantified, but un- N/A RIA.
monetized, benefits.
-------------------------------------------------------
Unquantified Benefits............. The purpose of the changes in this interim final rule RIA.
is to ensure that each H-1B nonimmigrant beneficiary
will be working for a qualified petitioner and in a
job that meets the statutory definition of specialty
occupation. In addition, these changes will
strengthen U.S. worker protections while improving
the integrity of the H-1B program by preventing
fraud and abuse
----------------------------------------------------------------------------------------------------------------
COSTS
----------------------------------------------------------------------------------------------------------------
Annualized monetized costs (3 percent) .............. .............. RIA.
(discount rate in parenthesis). $430,797,915.
(7 percent) .............. .............. RIA.
$425,277,621.
-------------------------------------------------------
Annualized quantified, but un- N/A
monetized, costs.
-------------------------------------------------------
Qualitative (unquantified) costs.. N/A
----------------------------------------------------------------------------------------------------------------
TRANSFERS
----------------------------------------------------------------------------------------------------------------
Annualized monetized transfers: N/A.................. N/A N/A
``on budget''.
From whom to whom?
Annualized monetized transfers: N/A.................. N/A N/A
``off-budget''.
From whom to whom?................ N/A.................. N/A N/A
----------------------------------------------------------------------------------------------------------------
Miscellaneous Analyses/Category Effects Source Citation
----------------------------------------------------------------------------------------------------------------
Effects on state, local, and/or N/A
tribal governments.
-------------------------------------------------------
Effects on small businesses....... N/A
-------------------------------------------------------
Effects on wages.................. N/A
-------------------------------------------------------
Effects on growth................. N/A
----------------------------------------------------------------------------------------------------------------
[[Page 63944]]
2. Provisions of the Interim Final Rule With Economic Impacts
The H-1B nonimmigrant visa program helps U.S. employers meet their
business needs by temporarily employing foreign workers in specialty
occupations. A specialty occupation is defined as an occupation that
requires (1) theoretical and practical application of a body of highly
specialized knowledge, and (2) the attainment of a bachelor's degree
(or higher) in the specific specialty (or its equivalent) as a minimum
qualification for entry into the occupation in the United States.\155\
The H-1B visa program also includes workers performing services related
to a Department of Defense (DOD) cooperative research and development
project or coproduction project, and services of distinguished merit
and ability in the field of fashion modeling.
---------------------------------------------------------------------------
\155\ See INA 214(i)(l), 8 U.S.C. 1184(i)(l).
---------------------------------------------------------------------------
As discussed in detail in the preamble, the purpose of the changes
in the rule is to better ensure that each H-1B nonimmigrant worker will
be working for a qualified petitioner and in a job that meets the
statutory definition of specialty occupation. Additionally, the changes
help strengthen the integrity of the H-1B program and better ensure
that visas are only awarded to qualified beneficiaries and petitioners.
DHS is amending its regulations governing H-1B specialty occupation
workers by providing revisions and clarifications that will better
align the regulations with Congressional intent and will strengthen the
integrity of the H-1B program. DHS is making the following amendments
to the H-1B regulations through this interim final rule:
(a) Revising the regulatory definition and criteria for determining
whether the job the H-1B beneficiary will be employed in is in a
specialty occupation, so they align more closely with the statutory
definition of the term;
(b) Requiring corroborating evidence of work in a specialty
occupation;
(c) Codifying in regulations existing authority to conduct site
visits and other compliance reviews, and consequences for failure to
allow a site visit; and
(d) Eliminating the general itinerary requirement for H-1B
petitions.
(e) Limiting maximum validity period for third-party placements;
(f) Providing a written explanation for certain H-1B approvals.
In the sections that follow, DHS discusses the quantified economic
impacts of each provision listed above except for provision f) which
has no quantifiable economic impact. Provision f) is qualitatively
discussed in benefits section vi.
3. Population
In order to estimate the economic effects of this interim final
rule, DHS forecasts the affected population for the ten-year period
from the beginning of fiscal year (FY) 2021. The affected population is
defined as the annual population of Form I-129H1 \156\ petitions for
specialty occupation workers. DHS assumes that there are three primary
components that determine the population forecast: The historical
number of H-1B petitions, the expected change in the number of
petitions due to macroeconomic changes, and the expected changes in the
number of petitions due to provisions in this interim final rule.
---------------------------------------------------------------------------
\156\ See supra notes 9 and 153.
---------------------------------------------------------------------------
The historical number of H-1B petitions is summarized in Table 3
below. In each year between FY2015 and FY2019, DHS received between
123,203 and 141,190 initial H-1B petitions, with an annual average of
133,451 initial petitions received. In addition, DHS received between
235,566 and 279,946 H-1B extension petitions, with an annual average of
268,405 extension petitions received. Ignoring macroeconomic effects
and any effects of this interim final rule, DHS does not expect the
number of initial petitions approved to trend upwards or downwards.
This is borne out in the data: Neither the annual number of initial
petitions nor the annual number of extension petitions exhibit a trend;
both series rise and fall over the five-year historical period. Absent
changes in macroeconomic conditions and changes due to this interim
final rule, DHS would expect similar numbers in FY2021 to FY2030.
[[Page 63945]]
Table 3--Total Receipts, Approvals of Form I-129 H-1B by Type of Petition, FY 2015 to FY 2019
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Number of Number of Number of
Number of initial extension Number of initial extension
Fiscal year petitions petitions petitions petitions petitions petitions
received received received approved approved approved
A = B + C B C D = E + F E F
--------------------------------------------------------------------------------------------------------------------------------------------------------
2015.................................................... 368,160 132,594 235,566 238,956 91,267 147,689
2016.................................................... 398,800 129,098 269,702 304,911 87,765 217,146
2017.................................................... 403,149 123,203 279,946 326,798 82,041 244,757
2018.................................................... 418,596 141,190 277,406 298,625 76,747 221,878
2019.................................................... 420,574 141,170 279,404 365,199 124,816 240,383
-----------------------------------------------------------------------------------------------
Total............................................... 2,009,279 667,255 1,342,024 1,534,489 462,636 1,071,853
5-yr average........................................ 401,856 133,451 268,405 306,898 92,527 214,371
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Office of Policy and Strategy, Policy Research Division (PRD), Claims 3 and USCIS analysis. July 29, 2020.
The number of H-1B petition submissions is partially dependent on
macroeconomic conditions. For example, a drastic improvement in U.S.
economic conditions may result in higher demand from U.S. employers for
H-1B specialty occupation workers. DHS acknowledges future uncertainty
surrounding the impacts of the COVID pandemic on the U.S. economy but
does not expect this to significantly alter the affected population
described. Consequently, the impacts of this interim final rule are
evaluated based on an assumed continuation of the conditions observed
in the historical data period (FY2015-2019) over the projected period
(FY2021-2030). Thus, DHS does not incorporate any macroeconomic changes
in its population forecast.
Finally, the number of H-1B petitions may also change due to
behavioral responses to provisions in the interim final rule. For
example, provisions that increase filing costs may discourage potential
petitioners from filing, and provisions that decrease the term of the
H-1B validity period may result in increased filings by the same
petitioners. DHS examined each of the provisions and determined that
one provision would materially change the filing behavior of potential
petitioners: This interim final rule will reduce the maximum validity
period for third-party placement to one year compared to the three-year
current maximum validity period. This provision will result in more
petitions from petitioners with beneficiaries who work at third-party
worksites. DHS incorporates this increase in its FY2021-2030 forecasts
of the affected population. A detailed discussion of this provision's
effect on the forecasted population of petition is provided in the
corresponding cost analysis subsection.
---------------------------------------------------------------------------
\157\ U.S. Department of Homeland Security, U.S. Citizenship and
Immigration Services, Characteristics of H-1B Specialty Occupation
Workers: Fiscal Year 2019 Annual Report to Congress October 1, 2018-
September 30, 2019, 19-21 (Mar. 5, 2020), https://www.uscis.gov/sites/default/files/document/reports/Characteristics_of_Specialty_Occupation_Workers_H-1B_Fiscal_Year_2019.pdf (last visited Aug. 11, 2020).
\158\ The number of petitions approved is based on the validity
start date. If validity start date is unavailable, approval is based
on approval date. The number of petitions denied is based on the
date the application was denied irrespective of the initial date of
submission.
---------------------------------------------------------------------------
DHS acknowledges that changes to the H-1B program may impact
dependent H-4 nonimmigrants. DHS is unable to quantify the number of H-
1B workers that will be ineligible or no longer apply for a visa due to
this interim final rule and is therefore unable to quantify the costs
to the dependent H-4 nonimmigrants. H-1B nonimmigrant workers who are
the beneficiaries of petitions that are denied as a result of the
petitioner's failure to establish eligibility or noncompliance with the
changes made by this rule would be required to seek eligible employment
to avoid additional impacts to their dependents.
DHS acknowledges that some industries may be affected more than
others. According to FY2019 Annual Report to Congress,\157\
approximately half of H-1B petitions approved are for industries
related to computers, software, or data processing. These industries
would be most affected by this rule.
i. Historical Population of H-1B Specialty Occupation Worker Program
Table 4 shows the number of receipts, approvals, and denials for
all Form I-129 H-1B petitions including initials and extensions from
FY2015 to FY2019.\158\ During this period, the total annual receipts
for Form I-129 H-1B petitions have steadily increased each year and
ranged from a low of 368,160 in FY 2015 to a high of 420,574 in FY
2019. Accordingly, over the 5-year period, USCIS received an average of
401,856 Form I-129 H-1B petitions and approved an average of 306,898
petitions annually. DHS estimates the approval rate for Form I-129 H-1B
petitions is about 78 percent and the denial rate is about 22 percent.
[[Page 63946]]
Table 4--Total Receipts, Approvals, and Denials of Form I-129 H-1B Petitions With an H-1B Classification, FY 2015 to FY 2019
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of
Number of Number of Number of petitions Approval rate Denial rate
Fiscal year petitions petitions petitions approved or (%) (%)
received \a\ approved denied denied \b\
A B C D = B + C E = B/D F = C/D
--------------------------------------------------------------------------------------------------------------------------------------------------------
2015.................................................... 368,160 238,956 69,179 308,135 77.5 22.5
2016.................................................... 398,800 304,911 78,782 383,693 79.5 20.5
2017.................................................... 403,149 326,798 82,316 409,114 79.9 20.1
2018.................................................... 418,596 298,625 104,174 402,799 74.1 25.9
2019.................................................... 420,574 365,199 106,311 471,510 77.5 22.5
-----------------------------------------------------------------------------------------------
Total............................................... 2,009,279 1,534,489 440,762 1,975,251 .............. ..............
5-yr average........................................ 401,856 306,898 88,152 395,050 77.7 22.3
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Office of Policy and Strategy, Policy Research Division (PRD), Claims 3 and USCIS analysis. July 29, 2020. Number of Petition Denied data is
pulled on April 22, 2020.
\a\ The number of petitions received includes all initial petitions and petitions for extension.
\b\ The sum of petitions approved or denied does not equal the number of petitions received because some petitions are revoked, withdrawn, or still
pending.
To determine the cost of preparing and filing a petition, DHS
assumes that petitioners may use human resources (HR) specialists (or
others that provide equivalent services) (hereafter HR specialist) or
use lawyers or accredited representatives \159\ to complete and file
Form I-129 H-1B petitions. A lawyer or accredited representative
appearing before DHS must file Notice of Entry of Appearance as
Attorney or Accredited Representative (Form G-28) to establish the
eligibility and authorization of a lawyer or accredited representative
to represent a client (applicant, petitioner, requestor, beneficiary or
derivative, or respondent) in an immigration matter before DHS. Table 5
presents the total number of Form G-28 filings by petitioners who filed
Form I-129 H-1B. DHS estimates that about 74 percent (73.5 percent
rounded up) of Form I-129 H-1B petitions were completed and filed by a
lawyer or other accredited representative (hereafter lawyer). DHS
assumes the remaining 26 percent of Form I-129 H-1B petitions were
completed and filed by HR specialists.
---------------------------------------------------------------------------
\159\ Accredited representatives are defined in 8 CFR
292.1(a)(4) as a person representing an organization described in 8
CFR 292.2 who has been accredited by the Board. USCIS limited its
analysis to HR specialists, in-house lawyers, and outsourced lawyers
to present estimate cost. However, USCIS understands that not all
occupations employ individuals with these occupations and;
therefore, recognizes equivalent occupations may also prepare and
file these petitions.
Table 5--Total Number of Forms G-28 a filed with Form I-129 H-1B Petitions, FY 2015 to FY 2019
----------------------------------------------------------------------------------------------------------------
Percent of form
Receipts of form Number of form G- I-129 H-1B
Fiscal year I-129 H-1B 28 Filed with petitions filed
Petitions form I-129 H-1B with form G-28
petitions (%)
A B C = B/A
----------------------------------------------------------------------------------------------------------------
2015................................................... 368,160 257,771 70.0
2016................................................... 398,800 273,497 68.6
2017................................................... 403,149 292,390 72.5
2018................................................... 418,596 324,206 77.5
2019................................................... 420,574 329,399 78.3
--------------------------------------------------------
Total.............................................. 2,009,279 1,477,263 .................
5-year Average..................................... 401,856 295,453 73.5
----------------------------------------------------------------------------------------------------------------
**Source: Office of Policy and Strategy, Policy Research Division (PRD) and USCIS analysis. April 22, 2020.
\a\ Form G-28 has no filing fee.
[[Page 63947]]
Petitioners who use lawyers or accredited representatives to
complete and file Form I-129 H-1B petitions may either use an in-house
lawyer or hire an outsourced lawyer.\160\ Of the total number of Form
I-129 H-1B petitions filed between FY2015 and FY2019 by lawyers or
accredited representatives (74 percent), DHS estimates that 24 percent
of Form I-129 H-1B petitions filed by lawyers were filed by in-house
lawyers while the remaining 50 percent were filed by outsourced
lawyers.\161\
---------------------------------------------------------------------------
\160\ DHS uses the terms ``in-house lawyer'' and ``outsourced
lawyer'' to differentiate between the types of lawyers that may file
Form I-129H1 on behalf of an employer petitioning for an H-1B
beneficiary.
\161\ DHS uses data from the longitudinal study conducted in
2003 and 2007 on legal career and placement of lawyers, which found
that 18.6, 55, and 26.2 percent of lawyers practice law at
government (federal and local) institutions, private law firms, and
private businesses (as inside counsel), respectively. See Dinovitzer
et al (2009). After the JD II: Second Results from a National Study
of Legal Careers, The American Bar Foundation and the National
Association for Law Placemen (NALP) Foundation for Law Career
Research and Education, Table 3.1, p. 27. https://www.law.du.edu/documents/directory/publications/sterling/AJD2.pdf.
Among those working in private law firms and private businesses
(55 and 26.2 percent, respectively), DHS estimates that while 67.7
percent of lawyers practice law in private law firms, the remaining
32.3 percent practice in private businesses (55 percent + 26.2
percent = 81.2 percent, 67.7 percent = 55/81.2 *100, 32.2 percent =
26.2/81.2*100). Because 74 percent of the H-1B petitions are filed
by lawyers or accredited representatives, DHS multiplies 74 percent
by 32.3 and 67.7 percent to estimate the proportion of petitions
filed by in-house lawyers (working in private businesses) and
outsourced lawyer (working in private law firms), respectively.
24 (rounded) percent of petitions filed by in-house lawyers = 74
percent of petitions filed by lawyers or accredited representatives
x 32.3 percent of lawyers work in private businesses.
50 (rounded) percent of petitions filed by in-house lawyers = 74
percent of petitions filed by lawyers or accredited representatives
x 67.7 percent of lawyers work in private law firms.
---------------------------------------------------------------------------
ii. Population Affected by the Rule
DHS uses the estimates derived from the historical data shown in
tables 4 and 5 to estimate the baseline population. Accordingly, the
baseline population consists of 401,856 Form I-129 H-1B petitions
received annually, which is disaggregated into the percent of Form I-
129 H-1B petitions filed by HR specialists (26 percent), in-house
lawyers (24 percent), or outsourced lawyer (50 percent). Additionally,
DHS uses these percentage shares to disaggregate the 306,898 H-1B
petitions approved annually. For each provision, DHS further estimates
the subpopulation that is affected by that particular provision using
the same proportion of HR specialist, in-house lawyer, and outsourced
lawyer. These estimates are detailed in the separate provision
discussed in the cost analysis of this interim final rule.
Table 6--Summary of Estimated Average Number of Petitions Received Annually by Type of Filer
----------------------------------------------------------------------------------------------------------------
Number of
Estimated Number of Number of petitions
Affected population average petitions petitions filed by
population filed by HR filed by in- outsourced
affected specialists house lawyers lawyers
A B = A x 26% C = A x 24% D = A x 50%
----------------------------------------------------------------------------------------------------------------
Estimated average number of Form I-129 H-1B 401,856 104,483 96,445 200,928
petitions received annually....................
Estimated average number of petitions approved 306,898 79,793 73,656 153,449
annually.......................................
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
As discussed above, DHS forecasts an increase in the affected
population due to the new interim final rule. Table 7 below summarizes
this increase for FY2021-FY2030. The forecasted increase is discussed
in detail in section ``Limiting maximum validity period for third-party
placements.''
Table 7--Forecasting Total Receipts of Form I-129H1 for FY2021 to FY2030
----------------------------------------------------------------------------------------------------------------
Historical Estimated
baseline: \a\ increase in Total estimated
Fiscal year number of number of number of
petitions petitions petitions
received received received
----------------------------------------------------------------------------------------------------------------
2021................................................... 401,856 0 401,856
2022................................................... 401,856 110,483 512,339
2023................................................... 401,856 147,311 549,167
2024................................................... 401,856 147,311 549,167
2025................................................... 401,856 147,311 549,167
2026................................................... 401,856 147,311 549,167
2027................................................... 401,856 147,311 549,167
2028................................................... 401,856 147,311 549,167
2029................................................... 401,856 147,311 549,167
2030................................................... 401,856 147,311 549,167
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
\a\ Historical Baseline is the 5-year averages of received H-1B petitions for FY2015-2019 from Table 4.
[[Page 63948]]
4. Costs and Cost Savings of Regulatory Changes to Petitioners
i. Estimated Wage by Type of Filers
As previously discussed, DHS assumes that a petitioner will use an
HR specialist, in-house lawyer, or outsourced lawyer to complete and
file Form I-129H1 petitions.\162\ In this analysis, DHS estimates the
opportunity cost of time for these occupations using average hourly
wage rates of $32.58 for HR specialists and $69.86 for lawyers.\163\
These average hourly wage rates do not account for worker benefits such
as paid leave, insurance, and retirement. DHS accounts for worker
benefits when estimating the opportunity cost of time by calculating a
benefits-to-wage multiplier using the most recent DOL, Bureau of Labor
Statistics (BLS) report detailing average compensation for all civilian
workers in major occupational groups and industries. DHS estimates the
benefits-to-wage multiplier is 1.46.\164\
---------------------------------------------------------------------------
\162\ DHS limits its analysis to HR specialists, in-house
lawyers, and outsourced lawyer to present estimated costs. However,
DHS acknowledges that not all entities employ individuals with these
occupations and, therefore, recognizes equivalent occupations may
also prepare and file these petitions.
\163\ See U.S. Dep't of Labor, Bureau of Labor Statistics,
Occupational Employment Statistics, May 2019 National Occupational
Employment and Wage Estimates-National, SOC 13-1071--Human Resources
Specialist and SOC 23-1011--Lawyers, available at https://www.bls.gov/oes/2019/may/oes_nat.htm (last visited Aug. 11, 2020).
\164\ The benefits-to-wage multiplier is calculated as follows:
($37.10 Total Employee Compensation per hour) / ($25.47 Wages and
Salaries per hour) = 1.457 = 1.46 (rounded) See U.S. Dep't of Labor,
Bureau of Labor Statistics, Economic News Release, Employer Cost for
Employee Compensation (December 2019), Table 1 (Mar. 19, 2020),
available at https://www.bls.gov/news.release/archives/ecec_03192020.pdf (last visited Aug. 11, 2020). Employer costs per
hour worked for employee compensation and costs as a percent of
total compensation: Civilian workers, by major occupational and
industry group.
---------------------------------------------------------------------------
For petitioners filing Form I-129 H1, DHS calculates the average
total rate of compensation as $47.57 per hour for an HR specialist,
where the average hourly wage is $32.58 per hour worked and average
benefits are $14.99 per hour.\165\ Additionally, DHS calculates the
average total rate of compensation as $102.00 per hour for an in-house
lawyer, where the average hourly wage is $69.86 per hour worked and
average benefits are $32.14 per hour.\166\ Moreover, DHS recognizes
that a petitioner may choose, but is not required, to hire an
outsourced lawyer to prepare and file the H-1B petition. Therefore, DHS
calculates the average total rate of compensation as $174.65 per hour
for an outsourced lawyer, where the average hourly wage is $69.86 per
hour worked and the average benefits are $104.79 per hour.\167\ Table 6
shows the compensation rates used in this analysis.
---------------------------------------------------------------------------
\165\ Calculation of the weighted mean hourly wage for HR
specialists: $32.58 per hour x 1.46 = $47.566 = $47.57 (rounded) per
hour.
\166\ Calculation of weighted mean hourly wage for in-house
lawyers: $102.00 average hourly total rate of compensation for in-
house lawyer = $69.86 average hourly wage rate for lawyer (in-house)
x 1.46 benefits-to-wage multiplier.
\167\ Calculation of weighted mean hourly wage for outsourced
lawyer: $174.65 average hourly total rate of compensation for
outsourced lawyer = $69.86 average hourly wage rate for lawyer (in-
house) x 2.5 conversion multiplier. DHS uses a conversion multiplier
of 2.5 to estimate the average hourly wage rate for outsourced
lawyer based on the hourly wage rate for an in-house lawyer. DHS has
used this conversion multiplier in various previous rulemakings. For
example, the DHS analysis in, Exercise of Time-Limited Authority to
Increase the Fiscal Year 2018 Numerical Limitation for the H-2B
Temporary Nonagricultural Worker Program, 83 FR 24905 (May 31,
2018), used a multiplier of 2.5 to convert in-house attorney wages
to the cost of outsourced attorney wages.
Table 8--Summary of Estimated Wages for Form I-129 H-1B Petition Filers
by Type of Filer
------------------------------------------------------------------------
Hourly
compensation
rate
------------------------------------------------------------------------
Human Resources (HR) Specialist......................... $47.57
In-house Lawyer......................................... 102.00
Outsourced Lawyer....................................... 174.65
------------------------------------------------------------------------
Source: USCIS analysis.
ii. Baseline Estimate of Current Costs
In the current filing process, an employer petitioning on behalf of
an H-1B specialty occupation worker must complete and file Form I-
129H1. The filing fee for Form I-129H1 is $555 per petition and the
time burden to review instructions and complete and submit Form I-129H1
is 4.0 hours per petition.\168\ To estimate petitioners' postage cost
of mailing a package containing a completed Form I-129H1 petition and
all required supporting documents to USCIS, DHS uses the shipping price
of United States Postal Service (USPS) Domestic Priority Mail Express
Flat Rate Envelopes, which is priced at $27.55 per package.\169\
---------------------------------------------------------------------------
\168\ See supra notes 9 and 153.
\169\ Although petitioners may choose other means of shipping,
for the purposes of this analysis, DHS uses the shipping prices of
United States Postal Service (USPS) Domestic Priority Mail Express
Flat Rate Envelopes, which is currently priced at $27.55 per
package, as a proxy estimate for the postage cost of mailing a
package containing completed Form I-129H1. DHS also assumes that the
package on average weighs three pounds and ships locally or in zone
1 or 2. See U.S. Postal Service, Price List, Notice 123, Effective
January 26, 2020, available at https://pe.usps.com/text/dmm300/Notice123.htm#_c011 (last visited Aug. 11, 2020).
---------------------------------------------------------------------------
Public Law 114-113 requires payment of $4,000 for certain H-1B
petitions filed by employers that meet the statute's 50 employee/50
percent test. The Fee Schedule Final Rule, if it takes effect, would
extend applicability of the Public Law 114-113 fee, such that it would
be required for all H-1B petitions filed by those employers, unless the
petition is an amended petition without an extension of stay
request.\170\ In order to estimate the number of petitions that would
require the Public Law 114-113 fee, DHS uses the estimated percentage
of H-1B petitions filed by petitioners that have 50 or more employees
and 50 percent of the employees are in the H-1B or L-1 visa
classification: 26 percent. This fee applies to certain petitions filed
on or before September 30, 2027.\171\ The affected population to which
the $4,000 fee is applied is 104,483, which is 26 percent of 401,856,
the average number of petitions received annually from FY2015 to
FY2019.
---------------------------------------------------------------------------
\170\ See supra note 126. Currently, the Public Law 114-113 fee
is required for H-1B petitions filed by certain petitioners only
when the Fraud Fee also applies, meaning that it is not currently
required for H-1B extensions. While implementation of the Fee
Schedule Final Rule has been enjoined, DHS nevertheless estimated
costs of this interim final rule based on the fees that will be
required if the injunction is lifted and the Fee Schedule Final Rule
takes effect so as to avoid underestimating potential costs of this
interim final rule.
\171\ See supra note 126.
---------------------------------------------------------------------------
DHS applies a fraud prevention and detection fee of $500 to certain
H-1B petitions.\172\ In order to estimate the number of petitions that
will be filed with the fraud prevention and detection fee DHS uses the
percentage of H-1B petitions filed with the fraud prevention and
detection fee in FY2018 (52 percent) and multiplied by the 5-year
average number of petitions received annually from FY2015 to FY2019 in
Table 9 below (401,856). Therefore, the fraud prevention and detection
fee is applied to 208,965 petitions.
---------------------------------------------------------------------------
\172\ See section 214(c)(12)(A) of the INA, 8 U.S.C.
1184(c)(12)(A).
[[Page 63949]]
Table 9--Number of H-1B Petition Filed for Fraud Prevention and Detection Fee and ACWIA Fee or Exemption From
ACWIA Fee for FY 2018
----------------------------------------------------------------------------------------------------------------
Estimated
FY2018 Percentage petitions
----------------------------------------------------------------------------------------------------------------
Total Petitions Filed........................................... 418,799 .............. 401,856 *
----------------------------------------------------------------------------------------------------------------
Fraud Prevention and Detection Fee
----------------------------------------------------------------------------------------------------------------
Total Petitions Filed with Fee.................................. 218,333 52% \b\ 208,965 \g\
----------------------------------------------------------------------------------------------------------------
ACWIA Fee
----------------------------------------------------------------------------------------------------------------
Total Petitions Filed:
Without any fee exemptions.................................. 277,979 66% \c\ 265,225 \h\
With at least one exemption................................. 140,820 34% \d\ 136,631 \i\
Size of Employer:
Full time employees <26..................................... 39,333 11% \e\ 29,175 \j\
Full time employees >25..................................... 316,972 89% \f\ 235,946 \k\
Number of employees unknown................................. 62,494 .............. ..............
Total without unknown....................................... 356,305 \a\ .............. ..............
----------------------------------------------------------------------------------------------------------------
Source: Report on H-1B Petitions, Fiscal Year 2018 Annual Report to Congress, March 18, 2019 (Table 2 and Table
4).
* 5-year average number of petitions received annually from FY2015 to FY2019 (401,856) is from Table 4.
\a\ Total without unknown (356,305) = Total Petitions Filed FY2018 (418,799) - Number of employees unknown
(62,494).
\b\ Percentage of Total Petitions filed with Fraud Fee FY2018 (52%) = Total petitions filed with Fee FY2018/
Total petitions filed FY2018 = 218,333/418,799.
\c\ Percentage of Total petitions filed without any ACWIA fee exemptions FY2018 (66%) = Total petitions filed
without any ACWIA fee exemption FY2018/Total petitions filed FY2018 = 277,979/418,799.
\d\ Percentage of Total petitions filed with at least one ACWIA fee exemptions FY2018 (34%) = Total petitions
filed with at least one ACWIA fee exemption FY2018/Total petitions filed FY2018 = 140,820/418,799.
\e\ Percentage of Full-time employees <26 FY2018 (11%) = Full time employees <26 FY2018/Total without unknown
FY2018 = 39,333/356,305.
\f\ Percentage of Full-time employees >25 FY2018 (89%) = Full time employees >25 FY2018/Total without unknown
FY2018 = 316,972/356,305.
\g\ Total estimated petitions filed with Fraud Fee (208,965) = 5-year average number of petitions received
annually from FY2015 to FY2019 (401,856) * Percentage of Total Petitions filed with Fraud Fee FY2018 (52%).
\h\ Total estimated petitions filed without any ACWIA fee exemptions (265,225) = 5-year average number of
petitions received annually from FY2015 to FY2019 (401,856) * Percentage of Total petitions filed without any
ACWIA fee exemptions FY2018 (66%).
\i\ Total estimated petitions filed with at least one ACWIA fee exemptions FY2019 (136,631) = 5-year average
number of petitions received annually from FY2015 to FY2019 (401,856) * Percentage of Total petitions filed
with at least ACWIA fee exemptions FY2018 (34%).
\j\ Estimated Full-time employees <26 (29,175) = Total estimated petitions filed without any ACWIA fee
exemptions (265,225) * Percentage of Full-time employees <26 FY2018 (11%).
\k\ Estimated Full-time employees >25 (235,946) = Total estimated petitions filed without any ACWIA fee
exemptions (265,225) * Percentage of Full-time employees >25 FY2018 (89%).
DHS also applies the American Competitiveness and Workforce
Improvement Act (ACWIA) fee.\173\ Certain petitions are exempt from the
ACWIA fee and, when required, the amount of the fee depends on the size
of the entity. It is $750 for employers with 25 or fewer full-time
employees or $1,500 for employers with 26 or more full-time employees.
In order to estimate the number of petitions that will be filed with
the ACWIA fee, DHS uses the percentage of H-1B petitions filed with the
ACWIA fee in FY2018 (66 percent) and the 5-year average of the annual
number of H-1B petitions received (401,856) from Table 9 above. Total
estimated petitions filed with the ACWIA fee is 265,225 as described in
Table 9. Among the estimated petitions filed with the ACWIA fee
(265,225) using the percentage of H-1B petitions filed with the ACWIA
fee in FY2018 there are 29,175 (11 percent) employers with 25 or fewer
full-time employees and 235,946 (89 percent) employers with 26 or more
full-time employees also as described in Table 9. Based on these
estimated annual number of petitions, DHS estimates that 29,175
petitions would require an ACWIA fee of $750 and 235,946 petitions
would require an ACWIA fee of $1,500 for each fiscal year for FY2021 to
FY2030.
---------------------------------------------------------------------------
\173\ See INA 214(c)(9), 8 U.S.C. 1184(c)(9).
---------------------------------------------------------------------------
Table 10 shows the total annual cost of filing Form I-129 H-1B
using the historical data on petitions received for FY2015 to FY2019.
The baseline population is estimated using the 5-year average of the
annual number of H-1B petitions received from FY2015 to FY2019
(401,856) in Table 4. Various fees are applied to the proportion of the
baseline population as described in Table 9. DHS estimates the total
annual cost under current regulation is $1,331,915,275, or an average
of $3,314 per petition received. This baseline cost per petition
received is applied to the baseline population for FY2021 to
FY2027.\174\ Since the Public Law 114-113 Fee of $4,000 is currently
set to expire at the end of FY2027, DHS removes this fee from its
baseline per petition cost in fiscal years FY2028 to FY2030. For those
years, the baseline cost per petition received is estimated to be
$2,274 per petition received.\175\
---------------------------------------------------------------------------
\174\ Average per petition received cost ($3,314, rounded) =
Total annual cost ($1,331,915,275)/5-year average petition received
annually (401,856) for FY2015 to FY2019.
\175\ Average per petition received cost without Public Law 114-
113 Fee of $4,000 ($2,274, rounded) = Total annual cost without
Public Law 114-113 Fee of $4,000 ($913,983,275)/5-year average
petition received annually (401,856) for FY2015 to FY2019; Total
annual cost without Public Law 114-113 Fee of $4,000 ($913,983,275)
= Total annual cost ($1,331,915,275)--Public Law 114-113 fee
($417,932,000) from Table 10.
[[Page 63950]]
Table 10--Estimated Annual Baseline (Current) Cost of Filing Form I-129 H-1B Petitions
----------------------------------------------------------------------------------------------------------------
Affected Time burden Compensation Total annual
Cost items population (hours) rate cost
A B C D = A x B x C
----------------------------------------------------------------------------------------------------------------
Opportunity cost of time to complete Form I-129
petitions by:
HR specialist............................... 104,483 4.0 $47.57 $19,881,025
In-house lawyer............................. 96,445 4.0 102.00 39,349,560
Outsourced lawyer........................... 200,928 4.0 174.65 140,368,301
Form I-129 filing fee cost...................... 401,856 .............. 555 223,030,080
Public Law 114-113 fee.......................... 104,483 .............. 4,000 417,932,000
Fraud prevention and detection fee.............. 208,965 .............. 500 104,482,500
ACWIA fee <26................................... 29,175 .............. 750 21,881,059
ACWIA fee >25................................... 235,946 .............. 1,500 353,919,617
Postage cost per package to mail completed Form 401,856 .............. 27.55 11,071,133
I-129..........................................
---------------------------------------------------------------
Total Baseline Cost..................... .............. .............. .............. 1,331,915,275
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
DHS estimates the total annual additional costs of the regulatory
changes or cost savings from the regulatory changes. DHS presents each
of these costs/cost savings separately in sections that follow.
iii. Detailed Economic Effects of Each Provision in the Interim Final
Rule
The interim final rule changes the requirements governing the
petitioning process for H-1B specialty occupation workers, which will
result in additional costs for petitioners. The additional costs
include increase in time burden of completing and filing an H-1B
petition, submitting contractual documents, work orders, or similar
documentary evidence if the beneficiary will work at a third-party
worksite, requesting authorization to continue H-1B employment beyond 1
year for a subset of petitioners, codifying existing authority for
conducting worksite inspections, and clarifying petition denials or
revocations for failure to cooperate with a site inspection. In
addition, the interim final rule will eliminate the general itinerary
requirement for H-1B petitions which will result in cost savings for
petitioners.
The additional cost and cost savings discussed above reflect
changes to per petition costs. In addition, the interim final rule will
also increase the affected population. To better illustrate the effects
of each provision, DHS disentangles the effects of changes in per-
petition costs from the effects of changes in the affected population.
This is illustrated in the Diagram 1 below.\176\ In Diagram 1, the
vertical axis denotes per-petition costs and the horizontal axis
denotes the affected population. The area of the shaded rectangle thus
represents the current, baseline cost of preparing and filing H-1B
petitions to petitioners. The provisions that affect the per-petition
cost, including additional costs changes in Form I-129 H-1B, submitting
corroborating evidence, and additional cost savings from itinerary
requirement exemption, are represented as rectangles above the baseline
population, denoting that the additional costs are calculated based on
the baseline population. Separately, DHS adds a rectangle to the right
of the baseline cost rectangle to represent the additional costs
resulting from population changes due to the provision to limit the
maximum validity period for third-party worksites. As the rectangle
illustrates, DHS incorporates the per-petition cost increases into the
cost calculation of the population increase. Finally, DHS separately
estimates the cost of worksite inspections, which is represented by the
small rectangle on the top. The number of worksite inspections does not
depend on the number of H-1B petitions received and is not expected to
be affected by the provision that limits the validity period.
---------------------------------------------------------------------------
\176\ Diagram 1 excludes a one-time familiarization cost.
---------------------------------------------------------------------------
[[Page 63951]]
[GRAPHIC] [TIFF OMITTED] TR08OC20.002
a. Revising the Regulatory Definition and Standards for Specialty
Occupation So They Align More Closely With the Statutory Definition of
the Term
1. Additional Costs Due To Changes in Form I-129 for H-1B Petitions
DHS is amending its regulations governing H-1B specialty occupation
workers by making a number of revisions and clarifications to
strengthen the integrity of the H-1B program, thereby better protecting
the wages and working conditions of U.S. workers. DHS is amending Form
I-129H1, which must be filed by petitioners on behalf of H-1B
beneficiaries, in order to align them with the regulatory changes DHS
is making in the interim final rule. The changes to Form I-129H1 will
result in an increased time burden to complete and submit the form.
As discussed, the current estimated time burden to complete and
file Form I-129H1 takes a total of 4.0 hours per petition.\177\ As a
result of the changes in this interim final rule, DHS estimates the
total time burden to complete and file Form I-129H1 will be 4.5 hours
per petition, to account for the additional time petitioners will spend
on reviewing instructions, gathering the required documentation and
information, completing the request, preparing statements, attaching
necessary documentation, and submitting the request. DHS estimates the
time burden will increase by a total of 30 minutes (0.5 hours) per
petition.\178\
---------------------------------------------------------------------------
\177\ See supra note 9.
\178\ 0.5 hours additional time to complete and file new Form I-
129H1 = (4.5 hours to complete and file new Form I-129 H1)--(4.0
hours to complete and file current Form I-129H1).
---------------------------------------------------------------------------
To estimate the additional cost of filing due to changes in Form I-
129H1 petitions, DHS applies the additional estimated time burden to
complete and file Form I-129H1 (0.583 hours) to the respective total
population and compensation rate of who may file, including an HR
specialist, in-house lawyer, or outsourced lawyer.
The total affected population for this provision is the number of
petitions, including both initial and continuing petitions, for FY2021-
2030. The total affected population for FY2021-2030 is estimated using
the 5-year average of the annual number of H-1B petitions received for
FY2015-FY2019, as listed in Table 4. Although the provision's increase
in time burden may affect the total affected population, DHS believes
that any effect would be de minimis: The estimated cost of the
additional 30 minutes of time burden per petition is $62,\179\ which is
less than 0.06 percent of $107,000,\180\ the average annual
[[Page 63952]]
earnings of all H-1B nonimmigrant workers. DHS believes that this cost
increase may lead to de minimis changes on the margin to the set of
petitioners.
---------------------------------------------------------------------------
\179\ Calculation: The estimated cost of the additional 30
minutes of time burden per petition ($72, rounded) = ($47.57 (HR
specialist hourly wage rate, Table 6) * 26% (percent of H-1B
petitions filed by HR specialist, Table 5) + $102 (In-house lawyer
hourly wage rate, Table 6) * 24% (percent of H-1B petitions filed by
in-house lawyer, Table 5) + $174.65 (Outsourced lawyer hourly wage
rate, Table 6) *50% (percent of H-1B petitions filed by outsourced
lawyer, Table 5))*0.5 (30 minute increase in time burden).
\180\ This is the annual average earning of all H-1B
nonimmigrant workers in all industries with known occupations
(excluding industries with unknown occupations) for FY 2019. It is
what employers agreed to pay the nonimmigrant workers at the time
the petitions were filed and estimated based on full-time employment
for 12 months, even if the nonimmigrant worker worked fewer than 12
months. Source: USCIS, March 5, 2020. See Characteristics of H-1B
Specialty Occupation Workers, Fiscal Year 2019, p.16, Table 10,
supra note 21.
---------------------------------------------------------------------------
As shown in Table 11, DHS estimates the total additional annual
cost to petitioners of completing and filing Form I-129H1 petitions
will be approximately $24,949,861, or an average of $62 per petition
received.\181\
---------------------------------------------------------------------------
\181\ Additional annual cost per petition received for
completing and filing Form I-129 H-1B petitions ($62, rounded) =
Total baseline cost ($24,949,861)/5-year average petition received
annually (401,856).
Table 11--Additional Opportunity Costs of Time to Petitioners for Filing Form I-129H1 Petitions From an Increase
in Time Burden
----------------------------------------------------------------------------------------------------------------
Additional
Total affected time burden to Compensation
Cost items population complete form rate Total cost
I-129H (hours)
A B C D = A x B x C
----------------------------------------------------------------------------------------------------------------
Opportunity cost of time to complete Form I-129
H1 petitions by:
HR specialist............................... 104,483 0.5 $47.57 $2,485,128
In-house lawyer............................. 96,445 0.5 102.00 4,918,695
Outsourced lawyer........................... 200,928 0.5 174.65 17,546,038
----------------------------------------------------------------------------------------------------------------
Total................................... 401,856 .............. .............. 24,949,861
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
b. Requiring Corroborating Evidence of Work in a Specialty Occupation
1. Costs of Submitting Contracts, Work Orders, or Similar Evidence
Establishing Specialty Occupation and Employer-Employee Relationship
Petitioners who regularly place their workers at third-party
worksites often submit uncorroborated statements describing the role
the H-1B beneficiary will perform at the third-party worksite. Such
statements by the petitioner, without additional corroborating
evidence, are generally insufficient to establish by a preponderance of
the evidence that the H-1B beneficiary will actually perform specialty
occupation work, and that the petitioner will have an employer-employee
relationship with the beneficiary. Therefore, where a beneficiary will
be placed at one or more third-party worksites, DHS will require the
petitioner to submit evidence such as contracts, work orders, or other
similar evidence to establish that the beneficiary will perform
services in a specialty occupation at the third-party worksite(s), and
that the petitioner will have an employer-employee relationship with
the beneficiary.\182\
---------------------------------------------------------------------------
\182\ See new 8 CFR 214.2(h)(4)(iv)(C).
---------------------------------------------------------------------------
DHS estimates the time burden required to gather and submit
corroborating evidence (such as contracts, work orders, or similar
evidence) for petitioners with third-party worksite beneficiaries. DHS
notes that corroborating evidence will have to be detailed enough to
provide a sufficiently comprehensive view of the work available, and
the terms and conditions under which the work will be performed at the
third-party worksite. Since these petitioners will generally need to
provide more documentation than petitioners who do not seek to employ
H-1B workers at third-party worksite locations, DHS estimates the time
burden for petitioners will be approximately 1 hour to gather and
submit these documents as required under this interim final rule.\183\
DHS requests public comment on this time burden estimate.
---------------------------------------------------------------------------
\183\ DHS notes that it is using approximate time burden
estimates in this analysis because DHS does not have relevant
information on how much time it would take affected petitioners to
gather and submit corroborating evidence as required in the interim
final rule. Therefore, DHS assumes 1 hour for the time to gather and
submit written evidentiary document requirements.
---------------------------------------------------------------------------
Since the terms ``worksite'' and ``third-party worksite'' are
referenced in the new regulations, this interim final rule defines
these terms. For example, the new regulation defining an employer-
employee relationship refers to the ``worksite'' where the beneficiary
will be employed as a relevant factor. The term ``off-site'' used on
the Form I-129 H-1B has the same meaning as ``third-party worksite.''
\184\ Therefore, DHS uses the data on off-site locations to forecast
the number of petitions involving a third-party worksite. To estimate
the population impacted by the requirements for third-party worksites,
DHS uses data on approved Form I-129 H-1B petitions. DHS uses available
data for FY 2018 and FY 2019 to estimate the percentage of petitions
that are approved for third-party worksites. Accordingly, Table 12
shows the average number of Form I-129 H-1B petitions approved in FY
2018 and FY 2019 for workers placed at off-site location. Nearly 36
percent of petitions were approved for workers placed at off-site
locations.\185\ DHS uses the estimated 36 percent as the proportion of
both the population of received petitions and the population of
approved petitions that are third-party worksite.
---------------------------------------------------------------------------
\184\ See supra note 27.
\185\ Estimate based on data obtained from the Office of Policy
and Strategy, Policy Research Division (PRD). 36 (rounded) percent
petitions approved for off-site locations in FY 2018 and FY2019 =
239,916 total petitions approved for off-site locations in FY 2018
and FY2019 / 671,209 total petitions approved in FY 2018 and FY2019.
Table 12--Form I-129 H-1B Petitions for Workers Placed at Off-Site Locations
----------------------------------------------------------------------------------------------------------------
Total approved
petitions for Percent placed at
Fiscal year workers placed at Total approved off-site
off-site petitions locations (%)
locations
----------------------------------------------------------------------------------------------------------------
2018................................................... 112,071 302,159 37.1
[[Page 63953]]
2019................................................... 127,845 369,050 34.6
--------------------------------------------------------
Total.............................................. 239,916 671,209 71.7
2-year Average..................................... 119,958 335,605 35.8
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD). May 27, 2020.
Based on DHS' previous estimate of the average annual total number
of receipts of Form I-129 H-1B petitions (401,856), we estimate that
approximately 144,668 petitions would be filed requesting workers to be
placed at third-party worksites.\186\ To estimate the total cost of
submitting documentary evidence as per the requirements of this
provision, DHS multiplies the rate of compensation according to who
would file the petition (an HR specialist, in-house lawyer, or
outsourced lawyer, respectively) among the affected population by the
estimated time burden to submit the documents. As shown in Table 13,
DHS estimates that the total annual cost of submitting corroborating
evidence (such as contracts, work orders or similar documents) required
by this rule is $17,963,871 for the population of 144,668 petitions of
workers placed at third-party worksites.
---------------------------------------------------------------------------
\186\ DHS uses the proportion of workers approved for off-site
locations petitions (36 percent) as an approximate measure to
estimate the number of workers to be placed at third-party worksites
from the total number of petitions filed. 144,668 petitions filed
requesting workers to be placed at third-party worksites = 401,856
petitions filed annually x 36 percent.
---------------------------------------------------------------------------
To estimate the effect of this provision in conjunction with other
provisions that change the forecasted population, DHS calculates the
cost of this provision on a per-petition-received basis. The annual
cost of this provision, divided amongst the entire population of
received petitions, would average out to approximately $45 per received
petition.\187\
---------------------------------------------------------------------------
\187\ The annual cost of the provision per received petition
($45) = Total annual cost of submitting corroborating evidence
($17,963,871)/Total number of H-1B petitions filed annually
(401,856).
Table 13--Form I-129 H1 Petitioners' Cost for Submitting Corroborating Evidence To Establish That the
Beneficiary Will Be Employed by the Petitioner in a Specialty Occupation at the Third-Party Worksite
----------------------------------------------------------------------------------------------------------------
Affected Time burden Compensation
Cost items population (hours) rate Total cost
A B C D = A x B x C
----------------------------------------------------------------------------------------------------------------
Opportunity cost of time to complete Form I-129
H1 petitions by:
HR specialist a............................. 37,614 1 $47.57 $1,789,298
In-house lawyer b........................... 34,720 1 102.00 3,541,440
Outsourced lawyer c......................... 72,334 1 174.65 12,633,133
---------------------------------------------------------------
Total................................... 144,668 .............. .............. 17,963,871
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.
a 37,614 petitions filed by HR specialist annually = 144,668 petitions request workers to be placed at third-
party worksite annually x 26 percent.
b 34,720 petitions filed by in-house lawyers annually = 144,668 petitions request workers to be placed at third-
party worksites annually x 24 percent.
c 72,334 petitions filed by outsourced lawyer annually = 144,668 petitions request workers to be place at third-
party worksites annually x 50 percent.
Although the provision's increase in time burden may affect the
total affected population, DHS believes that any effect would be de
minimis: The estimated cost of the additional one hour of time burden
per petition involving third-party worksites is $124,\188\ which is
less than 0.12 percent of $107,000,\189\ the average annual earnings of
all H-1B nonimmigrant workers. DHS believes that this cost increase is
so small that no potential petitioner would change their decision to
file based solely on this change.
---------------------------------------------------------------------------
\188\ Calculation: The estimated cost of the additional one hour
of time burden per petition ($124, rounded) = $47.57 (HR specialist
hourly wage rate, Table 6) * 26% (percent of H-1B petitions filed by
HR specialist, Table 5) + $102 (In-house lawyer hourly wage rate,
Table 6) * 24% (percent of H-1B petitions filed by in-house lawyer,
Table 5) + $174.65 (Outsourced lawyer hourly wage rate, Table 6) *
50% (percent of H-1B petitions filed by outsourced lawyer, Table 5).
\189\ This is the annual average earning of all H-1B
nonimmigrant workers in all industries with known occupations
(excluding industries with unknown occupations) for FY 2019. It is
what employers agreed to pay the nonimmigrant workers at the time
the petitions were filed and estimated based on full-time employment
for 12 months, even if the nonimmigrant worker worked fewer than 12
months. See Characteristics of H-1B Specialty Occupation Workers,
Fiscal Year 2019, p.16, Table 10, supra note 21.
---------------------------------------------------------------------------
c. Codifying in Regulations Existing Authority To Conduct Site Visits
and Other Compliance Reviews and Clarifying Consequences for Failure To
Allow a Site Visit
1. Cost of Worksite Inspections
Using its general authority, USCIS may conduct audits, on-site
inspections, compliance reviews, or investigations to help verify a
petitioner's and beneficiary's H-1B eligibility and better ensure that
all laws have been complied with before and after approval of such
benefits.\190\ The existing authority to
[[Page 63954]]
conduct on-site inspection is critical to the integrity of the H-1B
program to detect and deter fraud and noncompliance. In this rule, DHS
is adding regulations specific to the H-1B program to codify its
existing authority and clarify the scope of inspections--particularly
on-site inspections--and the consequences of a petitioner's or third
party's refusal or failure to fully cooperate with these inspections.
---------------------------------------------------------------------------
\190\ See Section 103 of the INA and 8 CFR part 2.1. As stated
in subsection V.A.5.ii(d) of this analysis, this interim final rule
will also clarify the possible scope of an inspection, which may
include the petitioning organization's headquarters, satellite
locations, or the location where the beneficiary works or will work,
including third-party worksites, as applicable.
---------------------------------------------------------------------------
To be clear, USCIS has historically conducted site visits and has
had the authority to deny or revoke petitions for reasons including
noncompliance with a site visit request. However, the authority to
conduct a site visit is not currently codified in CFR for the H-1B
program. Since this interim final rule newly codifies this authority,
DHS quantitatively estimates the costs associated with conducting site
visits. Also, the provision delineates that failure or refusal to
cooperate with a site visit request and allow USCIS to verify facts may
result in denial or revocation. DHS considers this part of the
provision as a clarification to existing regulations \191\ and
discusses the benefits of this clarification qualitatively.
---------------------------------------------------------------------------
\191\ See 8 CFR 214.2(h)(11)(iii)(A).
---------------------------------------------------------------------------
In July 2009, USCIS started the Administrative Site Visit and
Verification Program (ASVVP) \192\ as an additional method to verify
information in certain visa petitions under scrutiny. Under this
program, Fraud Detection and National Security (FDNS) officers were
authorized to make unannounced site visits to collect information as
part of a compliance review, which verifies whether petitioners and
beneficiaries are following the immigration laws and regulations that
are applicable in a particular case. This process includes researching
information in government databases, reviewing public records and
evidence accompanying the petition, interviewing the petitioner and/or
beneficiary, and conducting site visits. Once the site visit is
completed, the FDNS officers write a Compliance Review Report,
identifying any indicators of fraud or noncompliance to assist USCIS in
subsequent final adjudicative decisions (for example, a notice of
intent to revoke the petition approval).
---------------------------------------------------------------------------
\192\ See U.S. Citizenship and Immigration Services--
Administrative Site Visit and Verification Program, available at
https://www.uscis.gov/about-us/directorates-and-program-offices/fraud-detection-and-national-security/administrative-site-visit-and-verification-program (last visited Aug. 11, 2020).
---------------------------------------------------------------------------
Site visits conducted by USCIS have uncovered noncompliance in the
H-1B program. From FY 2013 to 2016, USCIS conducted 30,786 H-1B
compliance reviews, of which 3,811 (12.4 percent) were found to be
noncompliant.\193\ From FY 2016 to March 27, 2019, USCIS conducted
20,492 H-1B compliance reviews and found 2,341 (11.4 percent) to be
noncompliant.\194\ However, when disaggregated by worksite location,
the noncompliance rate is found to be higher for workers placed at an
off-site or third-party location compared to workers placed at a
petitioner's onsite location (21.7 percent and 9.9 percent,
respectively).\195\ As a result, starting in 2017, USCIS began
conducting more targeted site visits related to the H-1B program,
focusing on the cases of H-1B-dependent employers (employers who have a
high ratio of H-1B workers compared to U.S. workers, as defined by
statute) for whom USCIS cannot validate the employer's basic business
information through commercially available data, and on employers
petitioning for H-1B workers who work off-site at another company or
organization's location.
---------------------------------------------------------------------------
\193\ See supra note 132.
\194\ USCIS, Office of Policy and Strategy, Policy Research
Division (OP&S PRD), Summary of H-1B Site Visits Data.
\195\ Id.
---------------------------------------------------------------------------
DHS seeks to ensure that the H-1B program is used appropriately and
the interests of U.S. workers are protected. Hence, the interim final
rule codifies in regulation USCIS' existing authority to conduct site
visits and other compliance reviews and will make clear that
inspections and other compliance reviews may include, but are not
limited to, worksite visits including petitioners' headquarters,
satellite locations, or third-party worksites, and interviews or review
of records, as applicable.
The interim final rule will also clarify the consequences of a
petitioner's or third party's refusal or failure to cooperate with
these inspections. This interim final rule will make clear that
inspections may include, but are not limited to, a visit of the
petitioning organization's facilities, interviews with its officials,
review of its records related to compliance with immigration laws and
regulations, and interviews with any other individuals or review of any
other records that USCIS considers pertinent to the petitioner's H-1B
eligibility and compliance.\196\ The interim final rule also explains
the possible scope of an inspection, which may include the petitioning
organization's headquarters, satellite locations, or the location where
the beneficiary works or will work, including third-party worksites, as
applicable. Additionally, the new regulation states that if USCIS is
unable to verify facts related to an H-1B petition due to the failure
or refusal of the petitioner or a third-party to cooperate with a site
visit, then such failure or refusal may be grounds for denial or
revocation of any H-1B petition for H-1B workers performing services at
the location or locations which are a subject of inspection, including
any third-party worksites.\197\ This provision further strengthens the
integrity of the H-1B program and helps to detect and prevent fraud and
abuse.
---------------------------------------------------------------------------
\196\ See new 8 CFR 214.2(h)(4)(i)(B)(7)(i).
\197\ See new 8 CFR 214.2(h)(4)(i)(B)(7)(iii).
---------------------------------------------------------------------------
In order to estimate the population impacted by site visits, DHS
uses historical site inspection data. The site inspections were
conducted at Form I-129 H-1B petitioners' on-site locations and third-
party worksites from FY2015 to FY2019. Table 14 shows the number of
worksite inspections conducted each year and the average duration of
time for conducting each worksite inspection. During this period, the
annual number of worksite inspections has increased each year and
ranged from a low of 4,413 in FY2015 to a high of 10,384 in FY2019.
Table 14--Total Number of Worksite Inspections Conducted for Form I-129
H-1B Petitioners and Average Inspection Time, FY 2015 to FY 2019
------------------------------------------------------------------------
Average duration
Number of for worksite
Fiscal year worksite inspection
inspections (hours)
------------------------------------------------------------------------
2015.............................. 4,413 0.94
[[Page 63955]]
2016.............................. 7,046 0.91
2017.............................. 7,174 1.04
2018.............................. 7,718 1.16
2019.............................. 10,384 1.23
-------------------------------------
Total......................... 36,735 5.28
------------------------------------------------------------------------
Source: USCIS, Fraud Detection & National Security (FDNS), DS database,
May 28, 2020.
The number of worksite inspections does not depend on the number of
H-1B petitions received. It depends on DHS resources to conduct the
site visits. DHS uses the highest annual number of worksite inspections
in past five years (10,384 in FY2019) as the estimated annual
population of worksite visits for the next 10 years. DHS also uses 1.23
hours from FY2019 historical data for the estimated duration for
worksite inspection, which includes interviewing the beneficiary, the
on-site supervisor or manager and other workers, as applicable, and
reviewing all records pertinent to the H-1B petitions available to
USCIS when requested during inspection.
DHS assumes that a supervisor or manager would be present on behalf
of a petitioner while a USCIS immigration officer conducts the worksite
inspection in addition to the beneficiary. The beneficiary would be
interviewed to verify the date employment started, work location,
hours, salary, or other terms of employment, to corroborate the
information provided in an approved petition. The supervisor or manager
would be the most qualified employee at the location who could answer
all questions pertinent to the petitioning organization and its H-1B
nonimmigrant workers. They would also be able to gather and provide the
proper records considered pertinent to USCIS immigration officers.
Consequently, for the purposes of this economic analysis, DHS assumes
that on average two individuals will be interviewed during each
worksite inspection: The beneficiary and the supervisor or manager. DHS
uses their respective compensation rates in the estimation of the
worksite inspection costs.\198\ However, if any other worker or on-site
manager is interviewed, the same compensation rates would apply.
---------------------------------------------------------------------------
\198\ Any other USCIS costs associated with the worksite
inspections (i.e., travel and deskwork relating to other research,
review and document write up) are not estimated here because these
costs are covered by fees collected from petitioners filing Form I-
129 for H-1B petitions. All such costs are discussed under the
Federal Government Cost section.
---------------------------------------------------------------------------
DHS uses hourly compensation rates to estimate the opportunity cost
of time a beneficiary and supervisor or manager would incur during
worksite inspections. Based on data obtained from a USCIS report for
Fiscal Year 2019, DHS estimates that an H-1B worker earned an average
of $107,000 per year, or $51.44 hourly wage in FY 2019.\199\ The annual
salary does not include non-cash compensation and benefits, such as
health insurance and transportation. DHS adjusts the average hourly
wage rate using a benefits-to-wage multiplier to estimate the average
hourly compensation of $75.11 for an H-1B nonimmigrant worker.\200\ DHS
uses an average compensation rate of $85.96 for a supervisor or manager
in the estimation of the opportunity cost of time he or she would incur
during worksite inspections.\201\ Of the 1.23 hours of worksite
inspection time (see Table 14), DHS has no information on how long a
USCIS immigration officer would take to interview a beneficiary, or
supervisor, or manager. In this analysis, DHS assumes that it would
take 0.49 hours to interview a beneficiary and 0.74 hours to interview
a supervisor or manager.\202\
---------------------------------------------------------------------------
\199\ This is the annual average earning of all H-1B
nonimmigrant workers in all industries with known occupations
(excluding industries with unknown occupations) for FY 2019. It is
what employers agreed to pay the nonimmigrant workers at the time
the applications were filed and estimated based on full-time
employment for 12 months, even if the nonimmigrant worker worked
fewer than 12 months. See Characteristics of H-1B Specialty
Occupation Workers, Fiscal Year 2019, p.16, Table 10, at supra note
21. $51.44 hourly wage = $107,000 annual pay / 2,080 annual work
hours. According to U.S. Department of Labor (DOL) that certifies
the Labor Condition Application of the H-1B worker, a full-time H-1B
employee works 40 hours per week for 52 weeks for a total of 2,080
hours in a year. DOL, Wage and hour Division: Fact Sheet #68--What
Constitutes a Full-Time Employee Under H-1B Visa Program? July 2009.
See https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs68.pdf (last visited Aug. 11, 2020).
\200\ Hourly compensation of $75.11 = $51.44 average hourly wage
rate for H-1B worker x 1.46 benefits-to-wage multiplier. See section
V.A.5. for estimation of the benefits-to-wage multiplier.
\201\ Hourly compensation of $85.96 = $58.88 average hourly wage
rate for Management Occupations (national) x 1.46 benefits-to-wage
multiplier. See U.S. Dep't of Labor, Bureau of Labor Statistics,
Occupational Employment Statistics, May 2019 National Occupational
Employment and Wage Estimates National, SOC 11-0000--Management
Occupations, available at https://www.bls.gov/oes/current/oes110000.htm (last visited Aug. 11, 2020).
\202\ DHS assumes that an interview with the beneficiary takes
40% of the inspection duration, while an interview with the
supervisor or manager takes 60%. In addition to the inspection, DHS
assumes the supervisor or manager will need additional time to
gather and discuss the records/documents provided to the USCIS
Immigration Officer. Duration of interview hours for beneficiaries
(0.49) = Inspection duration (1.23) x 40% = 0.42 (rounded). Duration
of interview hours for supervisors or managers (0.74) = Inspection
duration (1.23) x 60% = 0.74.
---------------------------------------------------------------------------
In Table 15, DHS estimates the total annual opportunity cost of
time for worksite inspections of H-1B petitions by multiplying the
average annual number of worksite inspections (10,384) by the average
duration the interview would take for a beneficiary (0.49) or
supervisor or manager (0.74) and their respective compensation rates.
DHS obtains the total annual cost of the H-1B worksite inspections to
be $1,042,702 for this provision.
[[Page 63956]]
Table 15--Estimated Annual Petitioners' Cost of Worksite Inspection for H-1B Petitions
----------------------------------------------------------------------------------------------------------------
Average
Number of duration of Compensation
Cost item worksite interview rate Total cost
inspections (hours)
A B C D = A x B x C
----------------------------------------------------------------------------------------------------------------
Beneficiaries' opportunity cost of time during 10,384 0.49 $75.11 $382,172
worksite inspections...........................
Supervisors or managers' opportunity cost of 10,384 0.74 85.96 660,530
time during worksite inspections...............
---------------------------------------------------------------
Total....................................... .............. 1.23 .............. 1,042,702
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
If USCIS decides to conduct a pre-approval inspection, satisfactory
completion of such inspection will be a condition for approval of any
petition. In this interim final rule, it may be grounds for denial or
revocation of any H-1B petition for H-1B workers performing services at
the location or locations which are subject of inspection, including
any third-party worksites, if USCIS is unable to verify relevant facts
due to failure or refusal of the petitioner or third-party worksite
parties to cooperate in a site visit.\203\
---------------------------------------------------------------------------
\203\ See new 8 CFR 214.2(h)(4)(i)(B)(7)(ii) and (iii).
---------------------------------------------------------------------------
DHS notes that the site visit provision could create an incentive
for employers to cooperate, and to provide further evidence to support
the Form I-129 H-1B petition, for an adjudicative decision. The new
provision will notify petitioners of the specific consequences for
noncompliance, whether by them or by officials at the third-party
worksite. If USCIS conducts a site visit in order to verify facts
related to the H-1B petition, including whether the beneficiary is
being employed consistent with the terms of the petition approval, then
DHS believes that it would be reasonable to conclude that the
petitioner will not have met its burden of proof and the petition may
be properly denied or revoked if USCIS is unable to verify relevant
facts to determine compliance or because of failure or refusal to
comply with the site inspection. This would be true whether the
unverified facts relate to a petitioner worksite or a third-party
worksite at which a beneficiary has been or will be placed by the
petitioner. It would also be true whether the failure or refusal to
cooperate is by the petitioner or a third-party.
d. Eliminating the General Itinerary Requirement for H-1B Petitions
1. Cost Savings of Itinerary Requirement Exemption
Current regulations require an itinerary with the dates and
locations of the services to be provided if a Form I-129 H-1B petition
indicates that the beneficiary will be performing services in more than
one location.\204\ This interim final rule eliminates this requirement
for H-1B petitioners. DHS is revising 8CFR 214.2(h)(2)(i)(B) to specify
that the itinerary requirement for service or training in more than one
location will not apply to H-1B petitions. See new 8CFR
214.2(h)(2)(i)(B). DHS is making this revision in response to a recent
court decision specific to H-1B petitions.\205\ The itinerary
requirement at 8 CFR 214.2(h)(2)(i)(B) will still apply to other H
classifications. In addition, DHS will still apply the itinerary
requirement at 8 CFR 214.2(h)(2)(i)(F) for H-1B petitions filed by
agents.
---------------------------------------------------------------------------
\204\ See current 8 CFR 214.2(h)(2)(i)(B).
\205\ See, ITServe All., Inc. v. Cissna, No. CV 18-2350 (RMC),
2020 WL 1150186 (D.D.C. Mar. 10, 2020).
---------------------------------------------------------------------------
DHS calculates economic impacts of this provision relative to the
current regulation. Relative to the current regulation this provision
reduces the cost for the petitioners who file on behalf of
beneficiaries performing services in more than one location and
submitting itineraries. However, due to the absence of detailed data on
the number of petitioners who file on behalf of beneficiaries
performing services in more than one location, DHS uses the number of
petitions filed annually for workers placed at off-site locations as a
proxy for petitioners with beneficiaries performing services in
multiple locations. DHS assumes the petitions filed for workers placed
at off-site locations are likely to indicate that beneficiaries will be
performing services at multiple locations and, therefore, petitioners
are likely to submit itineraries. DHS estimates that the number of
petitions filed annually for workers placed at off-site locations who
may submit itineraries using average number of petitions received
annually from FY2015 to FY2019 and the proportion of off-site workers
approved petitions. The estimated number of petitions filed annually
for workers placed at off-site location is 144,668.\206\ DHS estimates
the cost savings based on the opportunity cost of time of preparing and
submitting an itinerary by multiplying the estimated time burden to
gather itinerary information (0.25 hours) \207\ by the compensation
rate of an HR specialist, in-house lawyer or outsourced lawyer,
respectively. Table 16 shows that the estimated annual cost savings due
to the elimination of the itinerary requirement, $4,490,968. Since the
itinerary is normally submitted with the Form I-129 H-1B package, there
would be no additional postage savings.
---------------------------------------------------------------------------
\206\ DHS uses the proportion of workers placed at off-site
location (36 percent from Table 12) as an approximate measure to
estimate the number of petitions received annually for workers
performing services in multiple locations from the total number of
petitions filed. 144,528 petitions filed for workers performing
services in multiple locations = 401,468 total petitions filed
annually x 36 percent.
\207\ DHS assumes that it would not take more than 0.25 hours
(or 15 minutes) because this itinerary information should be readily
available from the petitioners' records during the time of filing
the petitions.
---------------------------------------------------------------------------
To estimate the effect of this provision in conjunction with other
provisions that change the forecasted population, DHS calculates the
cost savings of this provision on a per-petition-received basis. The
annual cost savings of this provision, divided amongst the entire
population of received petitions, would average out to approximately
$11 per received petition.\208\
---------------------------------------------------------------------------
\208\ Additional annual cost savings per petition received for
itinerary requirement exemption for H-1B petitions ($11, rounded) =
Total baseline cost savings ($4,490,968)/5-year average petition
received annually (401,856).
[[Page 63957]]
Table 16--Estimated Cost Savings to Form I-129H1 Petitioners Due to the Elimination of the Itinerary Requirement
----------------------------------------------------------------------------------------------------------------
Affected Time burden Compensation Total annual
population \a\ (hours) rate cost
A B C A x B x C
----------------------------------------------------------------------------------------------------------------
Opportunity cost of time to complete Form I- .............. .............. .............. ..............
129H1 petitions by:
HR specialist............................... 37,614 0.25 $47.57 $447,325
In-house lawyer............................. 34,720 0.25 102.00 885,360
Outsourced lawyer........................... 72,334 0.25 174.65 3,158,283
---------------------------------------------------------------
Total................................... 144,668 .............. .............. 4,490,968
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
\a\ The estimated number of petitions filed annually for workers placed at off-site location 144,668.
HR specialist (37,614) = 144,668 x Percent of petitions filed by HR specialist (26%).
In-house lawyer (34,720) = 144,668 x Percent of petitions filed by in-house lawyer (24%).
Outsourced lawyer (72,334) = 144,668 x Percent of petitions filed by outsourced lawyer (50%).
e. Limiting Maximum Validity Period for Third-Party Placement
1. Costs of Requesting Authorization To Continue H-1B Employment
DHS is amending the maximum validity period for a petition approved
for workers placed at third-party worksites. Under current regulations
at 8 CFR 214.2(h)(9)(iii), the maximum validity period an H-1B petition
may be approved is ``up to three years''. This interim final rule will
limit the maximum validity period to 1 year for workers placed at
third-party worksites.\209\ This provision will result in more
extension petitions from petitioners with beneficiaries who work at
third-party worksites.
---------------------------------------------------------------------------
\209\ See new 8 CFR 214.2(h)(9)(iii)(A)(1).
---------------------------------------------------------------------------
DHS estimates the increase in petitions for FY2021 to FY2030 due to
the reduction in maximum validity period. Although the maximum validity
period for a specialty occupation worker is 3 years, the average
validity period for approved H-1B beneficiaries is 28 months.\210\
Since the interim final rule limits the validity period for petitions
indicating that the beneficiary will work at a third-party worksite to
up to 1 year (12 months), petitioners seeking to continue the
employment of beneficiaries placed at third-party worksites will have
to file extension petitions more frequently to request authorization to
continue such H-1B employment. The reduction in average validity period
from 28 months to 12 months or less will increase the frequency of
petitions by 28/12 times annually for FY 2023 and onwards. There is a
transition period in FY2021 and FY2022, which is explained in detail
below.
---------------------------------------------------------------------------
\210\ See supra note 11.
---------------------------------------------------------------------------
To determine the number of petitions under the current regulations,
DHS uses the historical 5-year average number of petitions approved for
FY2015 to FY2019 (306,898) \211\ and the proportion of workers approved
for off-site locations petitions (36 percent) as an approximate measure
to estimate the number of workers to be placed at third-party
worksites.\212\ DHS estimates the number of petitions approved annually
for workers placed at third-party worksite as 110,483 \213\ under the
28 month average validity period. DHS assumes that 110,483 petitions
are approved uniformly across 12 months, or 9,207 \214\ petitions per
month.
---------------------------------------------------------------------------
\211\ Table 4. Total Receipts, Approvals, and Denials of Form I-
129 Petitions with an H-1B Classification, FY 2015 to FY 2019.
\212\ Table 12. Form I-129 H-1B petitions for Workers placed at
Off-site Locations.
\213\ Calculation: Estimated number of petitions approved
annually for workers placed at third-party worksite 110,483 = 5-year
average number of petitions approved for FY2015 to FY2019 (306,898)
* Percentage of workers approved for off-site locations petitions
36%.
\214\ Calculation: 9,207 = Estimated number of petitions
approved annually for workers placed at third-party worksite
110,483/12 months.
---------------------------------------------------------------------------
For FY2021 DHS estimates no additional increase in petitions due to
this provision because any associated costs would occur at the end of
the petition validity period when the petitioner seeks to file an
extension petition. Any petition filed in FY2021 under the provision's
maximum validity period of 12 months for workers placed at third party
worksites would have otherwise been filed under the current
regulations, which is up to 3 years. The baseline population already
accounts for these petitions. The reduction in maximum validity period
from 3 years to 12 months would increase the number of filed petitions
starting 12 months after the effective date of this interim final rule,
which would be in FY2022. Those petitions pending or approved prior to
the effective date of this interim final rule would still be subject to
the current regulation maximum validity period of 3 years, unless an
amended petition is filed.
For FY2022, DHS estimates an additional 110,483 extension petitions
due to this provision. These additional extension petitions would be
filed by petitioners who had third-party worksite petitions filed in
FY2021 that require an extension under the interim final rule's 12
month maximum validity period but would not have required an extension
under the current 28 month average validity period.
For each year between FY2023 and FY2030, DHS estimates an
additional 147,311 extension petitions due to this provision. These
additional extension petitions represent the sum of 110,483 petitions
filed in the previous fiscal year plus 36,828 \215\ extension petitions
from four months of the fiscal year prior to the previous fiscal year,
all of which may have maintained their validity under the current 28
month average validity period.\216\ The summary table is presented
above in section ``Population Affected by the Rule'' in Table 7.
---------------------------------------------------------------------------
\215\ For example, in FY2025 extension petitions consist of
those petitions filed in FY2024 whose maximum 12 month validity
period would expire in FY2025 and 4 month worth of petitions filed
in FY2023 that would have had their 28 month average validity period
expire in FY2025. Therefore, 4 month worth of petition (36,828,
rounded) = 4 months * (Estimated number of petitions approved
annually for workers placed at third-party worksite 110,483/12
months).
\216\ Additional 147,311 extension petitions = 110,483 Petitions
filed in the previous fiscal year + 36,828 Extension petitions from
four months of the fiscal year prior to the previous fiscal year.
---------------------------------------------------------------------------
DHS estimates the additional costs resulting from the population
changes due to the limiting maximum validity period for third-party
worksites using the forecasted increase in the number of petitions
received as discussed above. The cost per additional petition is the
sum of the baseline cost per petition received, additional annual cost
per petition received for completing and
[[Page 63958]]
filing Form I-129H1 petitions, additional annual cost per petition
received for submitting corroborating evidence for H-1B petitions, and
the annual cost savings per petition received for itinerary requirement
exemption for H-1B petitions. Arithmetically, this is obtained by
adding $3,314, $62, $45, and ($11) to equal $3,410 for FY2021 to
FY2027. Due to the expiration of the Public Law 114-113 Fee at the end
of FY2027, the cost for FY2028 to FY2030 is obtained by adding $2,274,
$62, $45, and ($11) to equal $2,370.\217\
---------------------------------------------------------------------------
\217\ Additional annual cost per petition received for each
provision is calculated in the relevant section. Sum of cost per
petition received for each provision ($3,410) = Additional annual
cost per petition received for completing and filing Form I-129 H-1B
petitions ($62) + Additional annual cost per petition received for
submitting corroborating evidence for H-1B petitions ($45) -
Additional annual cost savings per petition received for itinerary
requirement exemption for H-1B petitions ($11) + Baseline cost per
petition received ($3,314) for FY2021 to FY2027. Sum of cost per
petition received for each provision ($2,370) = Additional annual
cost per petition received for completing and filing Form I-129 H-1B
petitions ($62) + Additional annual cost per petition received for
submitting corroborating evidence for H-1B petitions ($45) -
Additional annual cost savings per petition received for itinerary
requirement exemption for H-1B petitions ($11) + Baseline cost per
petition received ($2,274) for FY2028 to FY2030.
---------------------------------------------------------------------------
This provision's estimated annual increase in costs to petitioners
is the product of the estimated additional population and estimated
cost per petition received, both described above. Table 17 delineates
these costs for each fiscal year between FY2021 and FY2030.
Table 17--Forecasting Increase in Cost Due to Population Increase for FY2021 to FY2030
----------------------------------------------------------------------------------------------------------------
Estimated
increase in Cost per Estimated
Fiscal year number of petition increase in cost
petitions received due to population
received increase
A B A x B
----------------------------------------------------------------------------------------------------------------
2021......................................................... 0 $3,410 0
2022......................................................... 110,483 3,410 $376,747,030
2023......................................................... 147,311 3,410 502,330,510
2024......................................................... 147,311 3,410 502,330,510
2025......................................................... 147,311 3,410 502,330,510
2026......................................................... 147,311 3,410 502,330,510
2027......................................................... 147,311 3,410 502,330,510
2028......................................................... 147,311 2,370 349,127,070
2029......................................................... 147,311 2,370 349,127,070
2030......................................................... 147,311 2,370 349,127,070
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.
f. Familiarization Cost
Familiarization costs comprise the opportunity cost of the time
spent reading and understanding the details of a rule in order to fully
comply with the new regulation(s). To the extent that an individual or
entity directly regulated by the rule incurs familiarization costs,
those familiarization costs are a direct cost of the rule. The entities
directly regulated by this rule are the employers who file H-1B
petitions. There were 48,084 unique employers who filed H-1B petitions
in FY2019.\218\ DHS assumes that the petitioners require approximately
two hours to familiarize themselves with the rule. Using the average
total rate of compensation of HR specialists, In-house lawyer, and
Outsourced lawyer from Table 8 and assuming one person at each entity
familiarizes his or herself with the rule, DHS estimates a one-time
total familiarization cost of $11,941,471 in FY2021.
---------------------------------------------------------------------------
\218\ Source: Office of Policy and Strategy, Policy Research
Division (PRD), Claims 3 and USCIS analysis, August 18, 2020.
Table 18--Familiarization Costs to the Petitioners
----------------------------------------------------------------------------------------------------------------
Additional
Total affected time burden to Compensation
Cost items population familiarize rate Total cost
(hours)
A B C D = A x B x C
----------------------------------------------------------------------------------------------------------------
Opportunity cost of time to familiarize the rule
by:
HR specialist............................... 12,502 2 $47.57 $1,189,440
In-house lawyer............................. 11,540 2 102.00 2,354,160
Outsourced lawyer........................... 24,042 2 174.65 8,397,871
---------------------------------------------------------------
Total................................... 48,084 .............. .............. 11,941,471
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
[[Page 63959]]
5. Total Estimated and Discounted Net Costs of Regulatory Changes to
Petitioners
DHS presents the total annual estimated costs and cost savings
annualized over a 10-year implementation period resulting from
regulatory changes in this interim final rule. Table 19 shows the total
annual cost of the rule to be $55,897,905 in FY2021, $420,703,464 in
FY2022, $546,286,944 in each of FY2023 to FY2027, and $393,083,504 in
each of FY2028 to FY2030 to the petitioners. DHS also estimates the
total annual savings of the rule to petitioners to be $4,490,968.
Therefore, the estimated total annual net costs to petitioners to be
$51,406,937 in FY2021, $416,212,496 in FY2022, $541,795,976 in each of
FY2023 to FY2027, and $388,592,536 in each of FY2028 to FY2030.
Table 19--Summary of Estimated Annual Net Costs to Petitioners in the Interim Final Rule for FY2021 to FY2030
----------------------------------------------------------------------------------------------------------------
Total estimated Total estimated Total estimated Total estimated
Costs or cost savings (provision) annual cost annual cost annual cost annual cost
FY2021 FY2022 FY2023-FY2027 FY2028-FY2030
----------------------------------------------------------------------------------------------------------------
(a) Petitioners' additional cost of $24,949,861 $24,949,861 $24,949,861 $24,949,861
filing Form I-129H1 petitions......
(b) Petitioners' cost of submitting 17,963,871 17,963,871 17,963,871 17,963,871
evidence establishing employer-
employee relationship and specialty
occupation work when the
beneficiary will be working at a
third-party worksite...............
(c) Petitioners' cost of worksite 1,042,702 1,042,702 1,042,702 1,042,702
inspection.........................
(e) Petitioners' cost of requesting 0 376,747,030 502,330,510 349,127,070
authorization to continue H-1B
employment more frequently because
of limitation on validity period
for third-party worksite petitions.
(f) Petitioners' cost of 11,941,471 0 0 0
familiarization to the rule........
---------------------------------------------------------------------------
Total Annual Costs.............. 55,897,905 420,703,464 546,286,944 393,083,504
(d) Petitioners' cost savings due to 4,490,968 4,490,968 4,490,968 4,490,968
eliminating general H-1B itinerary
requirement........................
---------------------------------------------------------------------------
Total Annual Cost Savings....... 4,490,968 4,490,968 4,490,968 4,490,968
---------------------------------------------------------------------------
Total Annual Net Costs.......... 51,406,937 416,212,496 541,795,976 388,592,536
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
Calculation: Total annual net costs = Total annual costs-Total annual cost savings.
To compare costs over time, DHS applies a 3 percent and a 7 percent
discount rate to the total estimated costs associated with this interim
final rule. Table 20 shows the summary undiscounted and discounted
total net costs to Form I-129H1 petitioners over a 10-year period. DHS
estimates the 10-year total net cost of the rule to petitioners to be
approximately $4,342,376,923 undiscounted, $3,674,793,598 discounted at
3-percent, and $2,986,972,052 discounted at 7-percent. Over the 10-year
implementation period of the rule, DHS estimates the annualized costs
of the rule to be $430,797,915 annualized at 3-percent, $425,277,621
annualized at 7-percent.
Table 20--Total Estimated Net Costs of this Interim Final Rule
[FY 2021-FY 2030]
----------------------------------------------------------------------------------------------------------------
Total net costs Total net costs
Fiscal year Total net costs (discounted at 3 (discounted at 7
(undiscounted) percent) percent)
----------------------------------------------------------------------------------------------------------------
2021................................................... $51,406,937 $49,909,648 $48,043,867
2022................................................... 416,212,496 392,320,196 363,536,113
2023................................................... 541,795,976 495,820,069 442,266,905
2024................................................... 541,795,976 481,378,707 413,333,556
2025................................................... 541,795,976 467,357,968 386,293,043
2026................................................... 541,795,976 453,745,600 361,021,536
2027................................................... 541,795,976 440,529,709 337,403,304
2028................................................... 388,592,536 306,758,536 226,164,394
2029................................................... 388,592,536 297,823,822 211,368,593
2030................................................... 388,592,536 289,149,342 197,540,741
--------------------------------------------------------
Total.............................................. 4,342,376,923 3,674,793,598 2,986,972,052
Annualized......................................... ................. 430,797,915 425,277,621
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
E.O. 13771 directs agencies to reduce regulation and control
regulatory costs. This interim final rule is considered an E.O. 13771
regulatory action. DHS estimates the total cost of this rule is
$292,051,988 annualized using a 7
[[Page 63960]]
percent discount rate over a perpetual time horizon in 2016 dollars and
discounted back to 2016.
6. Costs to the Federal Government
DHS is revising the regulations to require issuance of a brief
explanation when an H-1B nonimmigrant petition is approved, but the
validity period end date is earlier than the end date requested by the
petitioner at the time of filing. The cost for providing a written
explanation of the rationale for limiting the approval validity end
date in such cases will be borne by USCIS.
The INA provides for the collection of fees at a level that will
ensure recovery of the full costs of providing adjudication and
naturalization services by DHS, including administrative costs and
services provided without charge to certain applicants and
petitioners.\219\ DHS notes USCIS establishes its fees by assigning
costs to an adjudication based on its relative adjudication burden and
use of USCIS resources. Fees are established at an amount that is
necessary to recover these assigned costs such as clerical, officers,
and managerial salaries and benefits, plus an amount to recover
unassigned overhead (such as facility rent, IT equipment and systems,
or other expenses) and immigration services provided without charge.
Consequently, since USCIS immigration fees are based on resource
expenditures related to the benefit in question, USCIS uses the fee
associated with an information collection as a reasonable measure of
the collection's costs to USCIS. DHS notes the time necessary for USCIS
to review the information submitted with the forms relevant to this
interim final rule includes the time to adjudicate the benefit request.
These costs are captured in the fees collected for the benefit request
from petitioners. DHS notes that this rule may increase USCIS' costs
associated with adjudicating immigration benefit requests. Future
adjustments to the fee schedule may be necessary to recover these
additional operating costs and will be determined during USCIS' next
comprehensive biennial fee review.
---------------------------------------------------------------------------
\219\ See INA section 286(m), 8 U.S.C. 1356(m).
---------------------------------------------------------------------------
7. Benefits of the Regulatory Changes
This rule specifies the conditions under which DHS intends to
implement the changes in the current rule regarding petitions for H-1B
specialty occupation workers filed using Form I-129H1. Although the H-
1B program was intended to allow employers to fill gaps in their
workforce and remain competitive in the global economy, it has in fact
expanded far beyond that, often to the detriment of U.S. workers. As
discussed above, the H-1B program has been used to displace U.S.
workers, and has led to reduced wages in a number of industries in the
U.S. labor market. In this interim final rule, DHS is implementing
revisions and clarifications to ensure that each H-1B nonimmigrant
beneficiary is working for a qualified petitioner and in a job meeting
the statutory requirements of a specialty occupation. The benefits of
each provision in the interim final rule is discussed in detail below.
DHS is updating Form I-129H1 for H-1B petitions to incorporate the
regulatory changes in this interim final rule. Although this will
result in petitioners incurring additional costs while filing H-1B
petitions, USCIS can use the additional credible evidence requested in
the H-1B petitions to potentially reduce the number of Requests for
Evidence (RFEs) sent to petitioners, which ultimately would allow for
more efficient and timely adjudication decisions.
Where a beneficiary will be placed at one or more third-party
worksites, DHS will require the petitioner to submit evidence such as
contracts, work orders, or other similar evidence to establish that the
petitioner will have an employer-employee relationship with the
beneficiary, and that the beneficiary will perform services in a
specialty occupation at the third-party worksite(s). While USCIS
already has general authority to request any document it deems
necessary, this interim final rule states that USCIS may request copies
of contracts, work orders, or other similar corroborating evidence on a
case-by-case basis in all cases, regardless of where the beneficiary
will be placed. This supporting evidence will allow USCIS to confirm
that beneficiaries working at third-party worksites will have a valid
employment relationship with the petitioner and will be performing
qualifying specialty occupation services while working at the third-
party worksite.
Based on the noncompliance uncovered by USCIS site visits,\220\ DHS
is adding additional requirements specific to the H-1B program to set
forth the scope of on-site inspections and the consequences of a
petitioner's or third-party's refusal or failure to fully cooperate
with these inspections. DHS believes that site visits are important to
maintain the integrity of the H-1B program by detecting and deterring
fraud and noncompliance. As a result, USCIS can ensure that the H-1B
program is used appropriately and the economic interests of U.S.
workers are protected. The ability to detect and deter fraud and
noncompliance will strengthen the H-1B program and hence outweigh any
overall adjudication delays resulting from the worksite visits. Under
this rule, such failure or refusal to cooperate and allow USCIS to
verify facts may be grounds for denial or revocation of any H-1B
petition for workers performing services at the location or locations
which are subjects of inspection, including any third-party worksites.
DHS is clarifying that failure or refusal to cooperate with a site
visit or other compliance review may be grounds for denial or
revocation of a petition.
---------------------------------------------------------------------------
\220\ See supra note 132.
---------------------------------------------------------------------------
DHS believes that limiting approvals for third-party placement
petitions to a maximum of 1-year would allow the agency to more
consistently and thoroughly monitor a petitioner's and beneficiary's
continuing eligibility. DHS believes that limiting the validity period
for petitions where beneficiaries are placed at third-party worksites,
where fraud and abuse is more likely to occur, would also increase
compliance with the regulations and improve the program's overall
integrity. This general practice will have the added benefit of
providing a degree of certainty to petitioners with respect to what
validity period to request and to expect, if approved.
DHS will revise the regulations to require issuance of a brief
explanation when an H-1B nonimmigrant petition is approved but USCIS
grants an earlier validity period end date than requested by the
petitioner. Providing a written explanation for limited validity period
will help ensure that the petitioner is aware of the reason for shorter
validity periods.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 605(b), as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121 (March 29, 1996), requires Federal agencies to
consider the potential impact of regulations on small entities during
the development of their rules. ``Small entities'' are small
businesses, not-for-profit organizations that are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. A regulatory flexibility analysis is not required when a rule
is exempt from notice and comment rulemaking. This IFR is exempt from
the notice and comment rulemaking, as stated in the Administrative
Procedure Act (APA), 5 U.S.C. 551 et seq. of the preamble.
[[Page 63961]]
Therefore, a regulatory flexibility analysis is not required for this
rule.
D. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in a $100 million or more expenditure (adjusted
annually for inflation) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector. The inflation-
adjusted value equivalent of $100 million in 1995 adjusted for
inflation to 2019 levels by the Consumer Price Index for All Urban
Consumers (CPI-U) is approximately $168 million based on the Consumer
Price Index for All Urban Consumers.\221\
---------------------------------------------------------------------------
\221\ See U.S. Dep't of Labor, Bureau of Labor Statistics,
Historical Consumer Price Index for All Urban Consumers (CPI-U):
U.S. City Average, All Items, available at https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202003.pdf (last visited
Aug. 11, 2020).
Calculation of inflation: (1) Calculate the average monthly CPI-
U for the reference year (1995) and the current year (2019); (2)
Subtract reference year CPI-U from current year CPI-U; (3) Divide
the difference of the reference year CPI-U and current year CPI-U by
the reference year CPI-U; (4) Multiply by 100 = [(Average monthly
CPI-U for 2019 - Average monthly CPI-U for 1995)/(Average monthly
CPI-U for 1995)] * 100 = [(255.657 - 152.383)/152.383] * 100 =
(103.274/152.383) *100 = 0.6777 * 100 = 67.77 percent = 68 percent
(rounded).
Calculation of inflation-adjusted value: $100 million in 1995
dollars * 1.68 = $168 million in 2019 dollars.
---------------------------------------------------------------------------
While this interim final rule may result in the expenditure of more
than $100 million by the private sector annually, the rulemaking is not
a ``Federal mandate'' as defined for UMRA purposes.\222\ The cost of
preparation of H-1B petitions (including required evidence) and the
payment of H-1B nonimmigrant petition fees by petitioners or other
private sector entities is, to the extent it could be termed an
enforceable duty, one that arises from participation in a voluntary
Federal program, applying for immigration status in the United
States.\223\ This interim final rule does not contain such a mandate.
The requirements of Title II of UMRA, therefore, do not apply, and DHS
has not prepared a statement under UMRA. Therefore, no actions were
deemed necessary under the provisions of the UMRA.
---------------------------------------------------------------------------
\222\ See 2 U.S.C. 658(6).
\223\ See 2 U.S.C. 658(7)(A)(ii).
---------------------------------------------------------------------------
E. Congressional Review Act
The Office of Information and Regulatory Affairs has determined
that this interim final rule is a major rule as defined by 5 U.S.C.
804, also known as the ``Congressional Review Act,'' as enacted in
section 251 of the Small Business Regulatory Enforcement Fairness Act
of 1996, Public Law 104-121, 110 Stat. 847, 868 et seq. Accordingly,
this rule will be effective at least 60 days after the date on which
Congress receives a report submitted by DHS under the Congressional
Review Act, or 60 days after the IFR's publication, whichever is later.
F. Executive Order 13132 (Federalism)
This interim final rule would not have substantial direct effects
on the states, on the relationship between the National Government and
the states, or on the distribution of power and responsibilities among
the various levels of government. Therefore, in accordance with section
6 of Executive Order 13132, it is determined that this interim final
rule does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement.
G. Executive Order 12988 (Civil Justice Reform)
This interim final rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
H. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This interim final rule does not have ``tribal implications''
because it does not have substantial direct effects on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes. Accordingly, E.O.
13175, Consultation and Coordination with Indian Tribal Governments,
requires no further agency action or analysis.
I. National Environmental Policy Act
DHS analyzes actions to determine whether the National
Environmental Policy Act, Public Law 91-190, 42 U.S.C. 4321 through
4347 (NEPA), applies to them and, if so, what degree of analysis is
required. DHS Directive 023-01 Rev. 01 (Directive) and Instruction
Manual 023-01-001-01 Rev. 01, Implementation of the National
Environmental Policy Act (Instruction Manual) establish the policies
and procedures that DHS and its components use to comply with NEPA and
the Council on Environmental Quality (CEQ) regulations for implementing
NEPA, 40 CFR parts 1500 through 1508.
The CEQ regulations allow federal agencies to establish, with CEQ
review and concurrence, categories of actions (``categorical
exclusions'') which experience has shown do not individually or
cumulatively have a significant effect on the human environment and,
therefore, do not require an Environmental Assessment (EA) or
Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(2)(ii), 1508.4.
Categorical exclusions established by DHS are set forth in Appendix A
of the Instruction Manual. Under DHS NEPA implementing procedures, for
an action to be categorically excluded, it must satisfy each of the
following three conditions: (1) The entire action clearly fits within
one or more of the categorical exclusions; (2) the action is not a
piece of a larger action; and (3) no extraordinary circumstances exist
that create the potential for a significant environmental effect.
Instruction Manual section V.B(2)(a)-(c).
This rule amends regulations governing the H-1B temporary
nonimmigrant specialty occupation program to improve the integrity of
the program, and more closely conform the regulatory framework to that
of the Act. Specifically, DHS is revising the regulatory definition and
standards for determining whether an alien will be employed in a
``specialty occupation'' to align with the statutory definition of the
term. The rule is also revising the definition of ``United States
employer,'' and ``employer-employee relationship,'' to clarify how
USCIS will determine whether there is an employer-employee relationship
between the petitioner and the beneficiary. In addition, the rule is
limiting the validity period for third-party placement petitions to a
maximum of 1 year; providing for a written explanation for certain
approved petitions where the validity period is limited to 1 year or
less; amending the itinerary provision applicable to petitioners of
temporary nonimmigrant workers to clarify it does not apply to H-1B
petitioners; and codifying USCIS' H-1B site visit authority, including
addressing the potential consequences of refusing a site visit. The
primary purpose of these changes is to better ensure that each H-1B
nonimmigrant worker will be working for a qualified employer and in a
position that meets the statutory definition of a ``specialty
occupation.'' While this rule tightens regulatory eligibility criteria
and may result in denials of some H-1B
[[Page 63962]]
petitions, this rule does not change the number of H-1B workers that
may be employed by U.S. employers; the rule leaves unchanged the
statutory numerical limitations and cap exemptions. It also does not
change rules for where H-1B nonimmigrants may be employed.
Generally, DHS believes NEPA does not apply to a rule intended to
strengthen an immigration program because any attempt to analyze its
potential impacts would be largely speculative, if not completely so.
DHS cannot reasonably estimate how many petitions will be filed for
workers to be employed in specialty occupations following the changes
made by this rule or whether the regulatory amendments herein will
result in an overall change in the number of H-1B petitions that are
ultimately approved, and the number of H-1B workers who are employed in
the United States in any fiscal year. DHS has no reason to believe that
the amendments to H-1B regulations would change the environmental
effect, if any, of the existing regulations. Therefore, DHS has
determined that even if NEPA were to apply to this action, this rule
clearly fits within categorical exclusion A3(d) in the Instruction
Manual, which provides an exclusion for ``promulgation of rules . . .
that amend an existing regulation without changing its environmental
effect.'' This rule maintains the current human environment by making
improvements to the H-1B program during the economic crisis caused by
COVID-19 in a way that will more effectively prevent the employment of
H-1B workers from negatively impacting the working conditions of U.S.
workers who are similarly employed. This rule is not a part of a larger
action and presents no extraordinary circumstances creating the
potential for significant environmental effects. Therefore, this action
is categorically excluded and no further NEPA analysis is required.
J. Paperwork Reduction Act
1. USCIS Form I-129 \224\
---------------------------------------------------------------------------
\224\ As indicated elsewhere in this rule, DHS estimated the
costs and benefits of this rule using the newly published U.S.
Citizenship and Immigration Services Fee Schedule and Changes to
Certain Other Immigration Benefit Request Requirements, final rule
(``Fee Schedule Final Rule''), and related form changes, as the
baseline. 85 FR 46788 (Aug. 3, 2020). The Fee Schedule Final Rule
was scheduled to go into effect on October 2, 2020. On September 29,
2020, the U.S. District Court for the Northern District of
California issued a nationwide injunction, which prevents DHS from
implementing the Fee Schedule Final Rule. See, Immigrant Legal
Resource Center v. Wolf, No. 4:20-cv-5883 (N.D. Cal. Sept. 29,
2020). While DHS intends to vigorously defend this lawsuit and is
not changing the economic baseline for this rule as a result of the
litigation, it is using the currently approved Form I-129, and not
the form version associated with the enjoined Fee Schedule Final
Rule for the purpose of seeking OMB approval of form changes
associated with this rule. Should DHS prevail in the Fee Schedule
Final Rule litigation and is able to implement the form changes
associated with that rule, DHS will comply with the Paperwork
Reduction Act and seek approval of the information collection
changes associated with this rule, based on the version of the Form
I-129 that is in effect at that time.
---------------------------------------------------------------------------
Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
agencies are required to submit to OMB, for review and approval, any
reporting requirements inherent in a rule. The revised information
collection has been submitted to OMB for review and approval as
required by the PRA.
DHS invites comment on the impact of this rule to the collection of
information. In accordance with the PRA, the information collection
notice is published in the Federal Register to obtain comments
regarding the proposed edits to the information collection instrument.
Comments are encouraged and will be accepted until November 9, 2020.
All submissions received must include the agency name and OMB Control
Number 1615-0009 in the body of the submission. To avoid duplicate
submissions, please use only one of the methods under the ADDRESSES and
Public Participation sections of this interim final rule to submit
comments. Comments on this information collection should address one or
more of the following four points:
(1) Evaluate whether the collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, for example, permitting
electronic submission of responses.
Overview of Information Collection
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Petition for a Nonimmigrant
Worker.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: I-129; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Business or other for-profit. USCIS
uses the data collected on this form to determine eligibility for the
requested nonimmigrant petition and/or requests to extend or change
nonimmigrant status. An employer (or agent, where applicable) uses this
form to petition USCIS for an alien to temporarily enter as a
nonimmigrant in certain classifications. An employer (or agent, where
applicable) also uses this form to request an extension of stay or
change of status on behalf of the alien worker. The form serves the
purpose of standardizing requests for certain nonimmigrant workers and
ensuring that basic information required for assessing eligibility is
provided by the petitioner while requesting that beneficiaries be
classified under certain nonimmigrant employment categories. It also
assists USCIS in compiling information required by Congress annually to
assess effectiveness and utilization of certain nonimmigrant
classifications.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection I-129 is
294,751 and the estimated hour burden per response is 2.84 hours; the
estimated total number of respondents for the information collection E-
1/E-2 Classification Supplement to Form I-129 is 4,760 and the
estimated hour burden per response is 0.67 hours; the estimated total
number of respondents for the information collection Trade Agreement
Supplement to Form I-129 is 3,057 and the estimated hour burden per
response is 0.67 hours; the estimated total number of respondents for
the information collection H Classification Supplement to Form I-129 is
96,291 and the estimated hour burden per response is 2.5 hours; the
estimated total number of respondents for the information collection H-
1B and H-1B1 Data Collection and Filing Fee Exemption Supplement is
96,291 and the estimated hour burden per response is 1 hour; the
estimated total number of respondents for the information collection L
Classification Supplement to Form I-129 is 37,831 and the estimated
hour burden per response is 1.34 hours; the estimated total number of
respondents for the information collection O and P Classifications
Supplement to Form I-129 is 22,710 and the estimated hour burden per
[[Page 63963]]
response is 1 hour; the estimated total number of respondents for the
information collection Q-1 Classification Supplement to Form I-129 is
155 and the estimated hour burden per response is 0.34 hours; the
estimated total number of respondents for the information collection R-
1 Classification Supplement to Form I-129 is 6,635 and the estimated
hour burden per response is 2.34 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection of information is 1,268,331 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $70,681,290.
2. USCIS H-1B Registration Tool
Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
agencies are required to submit to OMB, for review and approval, any
reporting requirements inherent in a rule. The revised information
collection has been submitted to OMB for review and approval as
required by the PRA.
DHS invites comment on the impact to the collection of information.
In accordance with the PRA, the information collection notice is
published in the Federal Register to obtain comments regarding the
proposed edits to the information collection instrument. Comments are
encouraged and will be accepted until November 9, 2020. All submissions
received must include the agency name and OMB Control Number 1615-0144
in the body of the submission. To avoid duplicate submissions, please
use only one of the methods under the ADDRESSES and Public
Participation sections of this interim final rule to submit comments.
Comments on this information collection should address one or more of
the following four points:
(1) Evaluate whether the collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Overview of Information Collection
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: H-1B Registration Tool.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: OMB-64; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Business or other for-profit. USCIS
will use the data collected through the H-1B Registration Tool to
select a sufficient number of registrations projected to meet the
applicable H-1B cap allocations and to notify registrants whether their
registration was selected.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection H-1B
Registration Tool is 275,000 and the estimated hour burden per response
is 0.583 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection of information is 160,325 hours.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $0.
K. Signature
The Acting Secretary of Homeland Security, Chad F. Wolf, having
reviewed and approved this document, is delegating the authority to
electronically sign this document to Chad R. Mizelle, who is the Senior
Official Performing the Duties of the General Counsel for DHS, for
purposes of publication in the Federal Register.
List of Subjects in 8 CFR Part 214
Administrative practice and procedure, Aliens, Cultural exchange
program, Employment, Foreign officials, Health professions, Reporting
and recordkeeping requirements, Students.
Accordingly, DHS amends chapter I of title 8 of the Code of Federal
Regulations as follows:
PART 214--NONIMMIGRANT CLASSES
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1. The authority citation for part 214 continues to read as follows:
Authority: 6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182,
1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305 and 1372; sec. 643,
Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-386, 114 Stat.
1477-1480; section 141 of the Compacts of Free Association with the
Federated States of Micronesia and the Republic of the Marshall
Islands, and with the Government of Palau, 48 U.S.C. 1901 note and
1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 115-
218.
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2. Amend Sec. 214.2 by:
0
a. Revising paragraph (h)(2)(i)(B);
0
b. Adding paragraph (h)(4)(i)(B)(7);
0
c. In paragraph (h)(4)(ii):
0
i. Adding a definition for ``Employer-employee relationship'' in
alphabetical order;
0
ii. Revising the definition of ``Specialty occupation;''
0
ii. Adding a definition for ``Third-party worksite'' in alphabetical
order;
0
iii. Revising the definition of ``United States employer;'' and
0
iv. Adding a definition for ``Worksite'' in alphabetical order;
0
d. Revising paragraph (h)(4)(iii)(A);
0
e. Adding paragraph (h)(4)(iv)(C);
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f. Redesignating paragraph (h)(9)(i) introductory text as paragraph
(h)(9)(i)(A);
0
g. Adding paragraph (h)(9)(i)(B);
0
h. Revising paragraph (h)(9)(iii)(A)(1); and
0
i. Adding paragraph (h)(24).
The revisions and additions read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(2) * * *
(i) * * *
(B) Service or training in more than one location. A petition that
requires services to be performed or training to be received in more
than one location must include an itinerary with the dates and
locations of the services or training. The itinerary must be submitted
to USCIS with the Petition for a Nonimmigrant Worker, or successor
form, as provided in the form instructions. The address that the
petitioner specifies as its location on the Petition for a Nonimmigrant
Worker must be where the petitioner is located for purposes of this
paragraph (h)(2)(i)(B). This paragraph (h)(2)(i)(B) does not apply to
H-1B petitions.
* * * * *
(4) * * *
(i) * * *
[[Page 63964]]
(B) * * *
(7)(i) The information provided on an H-1B petition and the
evidence submitted in support of such petition may be verified by USCIS
through lawful means as determined by USCIS, including telephonic and
electronic verifications and on-site inspections. Such inspections may
include, but are not limited to, a visit of the petitioning
organization's facilities, interviews with the petitioning
organization's officials, review of the petitioning organization's
records related to compliance with immigration laws and regulations,
and interviews with any other individuals or review of any other
records that USCIS may lawfully obtain and that it considers pertinent
to verify facts related to the adjudication of the H-1B petition, such
as facts relating to the petitioner's and beneficiary's H-1B
eligibility and compliance. An inspection may be conducted at locations
including the petitioning organization's headquarters, satellite
locations, or the location where the beneficiary works or will work,
including third-party worksites, as applicable.
(ii) USCIS may conduct on-site inspections or other compliance
reviews as described in paragraph (h)(4)(i)(B)(7)(i) of this section at
any time after the filing of an H-1B petition. If USCIS decides to
conduct a pre-approval inspection, satisfactory completion of such
inspection will be a condition for approval of any petition.
(iii) USCIS conducts on-site inspections or other compliance
reviews to verify facts related to the adjudication of the petition and
compliance with H-1B petition requirements. If USCIS is unable to
verify such facts due to the failure or refusal of the petitioner or a
third-party worksite party to cooperate in an inspection or other
compliance review, then such failure or refusal to cooperate and allow
USCIS to verify facts may result in denial or revocation of any H-1B
petition for H-1B workers performing services at the location or
locations which are a subject of inspection or compliance review,
including any third-party worksites.
* * * * *
(ii) * * *
Employer-employee relationship means the conventional master-
servant relationship consistent with the common law. The petitioner
must establish that its offer of employment as stated in the petition
is based on a valid employer-employee relationship that exists or will
exist. In considering whether the petitioner has established that a
valid ``employer-employee relationship'' exists or will exist, USCIS
will assess and weigh all relevant aspects of the relationship with no
one factor being determinative.
(1) In cases where the H-1B beneficiary does not possess an
ownership interest in the petitioning organization or entity, the
factors that USCIS may consider to determine if a valid employment
relationship will exist or continue to exist include, but are not
limited to:
(i) Whether the petitioner supervises the beneficiary and, if so,
where such supervision takes place;
(ii) Where the supervision is not at the petitioner's worksite, how
the petitioner maintains such supervision;
(iii) Whether the petitioner has the right to control the work of
the beneficiary on a day-to-day basis and to assign projects;
(iv) Whether the petitioner provides the tools or instrumentalities
needed for the beneficiary to perform the duties of employment;
(v) Whether the petitioner hires, pays, and has the ability to fire
the beneficiary;
(vi) Whether the petitioner evaluates the work-product of the
beneficiary;
(vii) Whether the petitioner claims the beneficiary as an employee
for tax purposes;
(viii) Whether the petitioner provides the beneficiary any type of
employee benefits;
(ix) Whether the beneficiary uses proprietary information of the
petitioner in order to perform the duties of employment;
(x) Whether the beneficiary produces an end-product that is
directly linked to the petitioner's line of business; and
(xi) Whether the petitioner has the ability to control the manner
and means in which the work product of the beneficiary is accomplished.
(2) In cases where the H-1B beneficiary possesses an ownership
interest in the petitioning organization or entity, additional factors
that USCIS may consider to determine if a valid employment relationship
will exist or continue to exist include, but are not limited to:
(i) Whether the petitioning entity can hire or fire the beneficiary
or set the rules and parameters of the beneficiary's work;
(ii) Whether and, if so, to what extent the petitioner supervises
the beneficiary's work;
(iii) Whether the beneficiary reports to someone higher in the
petitioning entity;
(iv) Whether and, if so, to what extent the beneficiary is able to
influence the petitioning entity;
(v) Whether the parties intended that the beneficiary be an
employee, as expressed in written agreements or contracts; and
(vi) Whether the beneficiary shares in the profits, losses, and
liabilities of the organization or entity.
* * * * *
Specialty occupation means an occupation that requires:
(1) The theoretical and practical application of a body of highly
specialized knowledge in fields of human endeavor, such as
architecture, engineering, mathematics, physical sciences, social
sciences, medicine and health, education, business specialties,
accounting, law, theology, or the arts; and
(2) The attainment of a U.S. bachelor's degree or higher in a
directly related specific specialty, or its equivalent, as a minimum
for entry into the occupation in the United States. The required
specialized studies must be directly related to the position. A
position is not a specialty occupation if attainment of a general
degree, such as business administration or liberal arts, without
further specialization, is sufficient to qualify for the position.
While a position may allow a range of degrees or apply multiple bodies
of highly specialized knowledge, each of those qualifying degree fields
must be directly related to the proffered position.
Third-party worksite means a worksite, other than the beneficiary's
residence in the United States, that is not owned or leased, and not
operated, by the petitioner.
United States employer means a person, firm, corporation, company,
or other association or organization in the United States which:
(1) Engages the beneficiary to work within the United States, and
has a bona fide, non-speculative job offer for the beneficiary;
(2) Has an employer-employee relationship with respect to employees
under this part; and
(3) Has an Internal Revenue Service Tax identification number.
Worksite means the physical location where the work actually is
performed by the H-1B nonimmigrant. A ``worksite'' will not include any
location that would not be considered a ``worksite'' for Labor
Condition Application (LCA) purposes.
(iii) * * *
(A) Criteria for specialty occupation position. A proffered
position does not meet the definition of specialty occupation in
paragraph (h)(4)(ii) of this section unless it also satisfies at least
one of the following criteria:
[[Page 63965]]
(1) A U.S. baccalaureate or higher degree in a directly related
specific specialty, or its equivalent, is the minimum requirement for
entry into the particular occupation in which the beneficiary will be
employed;
(2) A U.S. baccalaureate or higher degree in a directly related
specific specialty, or its equivalent, is the minimum requirement for
entry into parallel positions at similar organizations in the
employer's United States industry;
(3) The employer has an established practice of requiring a U.S.
baccalaureate or higher degree in a directly related specific
specialty, or its equivalent, for the position. The petitioner must
also establish that the proffered position requires such a directly
related specialty degree, or its equivalent, to perform its duties; or
(4) The specific duties of the proffered position are so
specialized, complex, or unique that they can only be performed by an
individual with a U.S. baccalaureate or higher degree in a directly
related specific specialty, or its equivalent.
* * * * *
(iv) * * *
(C) The petitioner must establish, at the time of filing, that it
has actual work in a specialty occupation available for the beneficiary
as of the start date of the validity period as requested on the
petition. When a beneficiary will be placed at one or more third-party
worksites, the petitioner must submit evidence such as contracts, work
orders, or other similar corroborating evidence showing that the
beneficiary will perform services in a specialty occupation at the
third-party worksite(s), and that the petitioner will have an employer-
employee relationship with the beneficiary. In accordance with 8 CFR
103.2(b) and paragraph (h)(9) of this section, USCIS may request copies
of contracts, work orders, or other similar corroborating evidence on a
case-by-case basis in all cases, regardless of where the beneficiary
will be placed.
* * * * *
(9) * * *
(i) * * *
(B) Where the petition is approved with an earlier validity period
end date than requested by the petitioner, the approval notice will
provide or be accompanied by a brief explanation for the validity
period granted.
* * * * *
(iii) * * *
(A)(1) H-1B petition in a specialty occupation. The maximum
validity period for an approved petition classified under section
101(a)(15)(H)(i)(b) of the Act for an alien in a specialty occupation
is 3 years. However, where the beneficiary will be working at a third-
party worksite, the maximum validity period for an approved petition is
1 year. In all instances, the approved petition may not exceed the
validity period of the labor condition application.
* * * * *
(24) Severability. (i) [Reserved]
(ii) The following provisions added or revised by the changes made
to the H-1B nonimmigrant visa classification program, as of December 7,
2020, are intended to be implemented as separate and severable from one
another: paragraphs (h)(2)(i), (h)(4)(i)(B)(7), (h)(4)(ii) (definitions
of employer-employee, specialty occupation, third-party worksite, U.S.
employer, and worksite), (h)(4)(iii)(A), (h)(4)(iv)(C), (h)(9)(i)(B),
and (h)(9)(iii)(A)(1) of this section. If one or more of the paragraphs
in the preceding sentence is not implemented, DHS intends that the
remaining paragraphs will remain valid and be implemented to the
greatest extent possible.
* * * * *
Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel, U.S.
Department of Homeland Security.
[FR Doc. 2020-22347 Filed 10-6-20; 4:15 pm]
BILLING CODE 9111-97-P