Law Office of Leila Freijy PLLC
Immigration & Compliance Law 
Sweeping changes to H-1B program proposed
The Administration’s widely publicized and long-awaited regulatory changes to the H-1B nonimmigrant visa classification were published in the Federal Register on October 8, 2020, and will take effect on December 7, 2020, unless enjoined.

To submit a comment on the rule on or before the deadline of December 7, 2020, go to: http://www.regulations.gov and type in USCIS-2020-0018 in the search field.

Specialty Occupation
  • The rule amends the definition of a “specialty occupation” to indicate that there must be a direct relationship between the required degree field(s) and the duties of the position:
  • General degrees in engineering, liberal arts, business, etc. without further specialization or explanation are not sufficient to meet specialty occupation.
  • In cases where the petitioner lists degrees in multiple “disparate” fields of study as the minimum entry requirement for a position, the petitioner must 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.
  • Where 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.
  • Instead of demonstrating that a bachelors’ degree is “normally,” “commonly” or “usually” required; petitioners 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 the required degree 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.

Third-Party Worksites
  • The definition of “worksite” is amended (so that it is similar to the DOL definition of “place of employment” at 20 CFR 655.715) as “the physical location where the work is actually performed by the H-1B nonimmigrant.”
  • The rule defines “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.”
  • The rule sets a 1-year maximum validity period for all H-1B petitions in which the beneficiary will be working at a third-party worksite. This applies to all H-1B petitions where any identified worksite is a third-party worksite, not just the primary worksite

Employer-Employee Relationship
  • The definition of “United States Employer” is amended by:
  • Striking the word “contractor” from the definition of “United States employer,” although DHS also explains at length that the deletion does not necessarily preclude a contractor from qualifying as a U.S. employer;
  • Inserting the word “company” in the general definition; and
  • Expanding upon the existing requirements by requiring that an employer must engage the beneficiary to work within the United States and have a bona fide, non-speculative job offer for the beneficiary.
  • The petitioner must establish that a bona fide job offer exists, and that actual work will be available as of the requested start date.
  • The rule defines the term “employer-employee relationship” to be the “conventional master-servant relationship as understood by common-law agency doctrine.” It includes a non-exhaustive list of factors to be considered in the totality of the circumstances, essentially restoring the January 2010 Neufeld Memo on employer-employee relationship that was recently invalidated. However, in addition to taking into account whether employer has “the right to control” the employee’s work as one of the enumerated factors, USCIS will also look at whether the employer actually exercises that right to control. This may require staffing companies to place a manager at each client site where they have employees.
  • The rule requires that petitioners filing third-party worksite petitions must 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 and that the petitioner will have an employer-employee relationship with the beneficiary. Such documentation may also be requested by USCIS for any and all H-1B petitions in a case-by-case basis.

Other Provisions
  •  The rule requires USCIS to issue a brief explanation when an H-1B nonimmigrant petition is approved but USCIS grants an earlier end validity date than requested by the petitioner.
  • The rule revises the itinerary requirement at 8 CFR 214.2(h)(2)(i)(B) to specify that this provision will not apply to H-1B petitions.
  •  The rule adds provisions regarding H-1B site visits to codify its authority to conduct site visits and describe the scope of inspections:
  • The regulation indicates that the possible scope of an inspection 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.
  • The rule also specifies that failure or refusal of the petitioner or a third-party to cooperate with a site visit 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.


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Sincerely,

Leila Freijy
Law Office of Leila Freijy PLLC
Law Office of Leila Freijy PLLC| FreijyLaw.com
Immigration & Compliance Law
Leila Freijy, Esq.
3150 Livernois Rd #103
Troy, MI 48083
248.817,8280
248.287.4115 (fax)