USCIS Clarifies Occupations Eligible For H-1B Visas After Trump

U.S. Citizenship and Immigration Services (USCIS) has provided what should be a welcome clarification for employers, the U.S. economy and skilled professionals on eligibility for H-1B petitions in specialty occupations. A footnote added to the USCIS website makes clear a previous Trump administration attempt (ruled unlawful) to restrict the positions that qualify for an H-1B petition is not USCIS policy. On the USCIS website, under H-1B Specialty Occupations, the agency recently added a footnote on occupations that “usually” require a bachelor's degree. That footnote reads: “’Normally,’ ‘common,’ and ‘usually’ are interpreted based on their plain language, dictionary definitions. They are not interpreted to mean ‘always.’” While this change might be lost on many people, its significance is clear to attorneys, employers and H-1B professionals who lived through the Trump era and experienced an increase in H-1B denials and Requests for Evidence based on sudden and questionable policy changes. PROMOTED “This is a welcome clarification of policy from USCIS and is consistent with the intentions of the H-1B category,” said Kevin Miner, a partner with Fragomen. “Roles in technology and business develop quickly, and the law often can’t keep up. For that reason, it is important that USCIS recognizes that there are situations where a role can be advanced and specialized but doesn’t require a degree 100% of the time. In practice, we have been seeing USCIS take this broader approach in most adjudications in the last year or two but it is very helpful to have this clear statement from the agency to remind adjudicators of this policy when that question arises.” The meaning of the words “normally,” “common,” and “usually” became flashpoints in lawsuits over H-1B denials and the Trump administration’s guidance to adjudicators. As noted on the USCIS website, an occupation in the H-1B category requires: “Theoretical and practical application of a body of highly specialized knowledge; and 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.” MORE FOR YOU The Inside Story Of Papa John's Toxic Culture Pablo Torre Tells FC Barcelona He Wants To Leave, After Feeling ‘Cheated’ By Xavi - Reports Rising Star Josh Giddey Opens Up On Oklahoma City Thunder’s Playoff Chase And 2023 NBA All-Star Weekend “The position must also meet one of the following criteria to qualify as a specialty occupation: “Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the particular position; “The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the job is so complex or unique that it can be performed only by an individual with a degree; “The employer normally requires a degree or its equivalent for the position; “The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.*” (Emphasis added. The * marks the new USCIS footnote about the words “normally,” “common,” and “usually” not meaning “always.”) Two court decisions during the Trump administration illustrate the issue. On March 31, 2020, in Taylor Made Software v. Kenneth T. Cuccinelli, U.S. District Judge Rudolph Contreras found USCIS was wrong to declare that since “many computer systems analysts have liberal arts degrees and gained experience elsewhere . . . the proffered position cannot be” a specialty occupation. In his ruling, Judge Contreras cited the March 6, 2020, decision in 3Q Digital, Inc. v. USCIS: “[The regulation] does not say that a degree must always be required, yet the agency appears to have substituted the word ‘always’ for the word ‘normally.’ This is a misinterpretation and misapplication of the law.” (See here for a history of the Trump administration’s H-1B policies.) In 2019, the American Immigration Lawyers Association (AILA) made internal USCIS documents public after settling a Freedom of Information Act (FOIA) lawsuit with the agency. Perhaps the most revealing USCIS document was “Implementation of March 31, 2017 Memo, Rescission of the December 22, 2000 ‘Guidance memo on H-1B computer-related-positions’.” Jonathan Wasden, who led the litigation and legal settlement that overturned many Trump administration H-1B policies, said at the time that under the law and regulation, if a degree is normal for U.S. workers in the position, then it qualifies as a specialty occupation. Wasden and other attorneys (and employers) noted the March 31, 2017, USCIS guidance memo argued if some individuals with an associate's degree work in a position, such a position doesn’t necessarily require a bachelor's degree and would no longer qualify as an H-1B specialty occupation. That interpretation could have prevented many positions (and individuals) from qualifying for H-1B petitions if allowed to stand. “The H-1B denial rate declined during the final year of the Trump administration after judges declared many of its H-1B-related actions unlawful,” according to a National Foundation for American Policy (NFAP) analysis. “That forced a legal settlement and changes to restrictive immigration policies that resulted in the denial rate for new H-1B petitions for initial employment in FY 2021 dropping to 4%, far lower than the denial rate of 24% in FY 2018, 21% in FY 2019 and 13% in FY 2020.” (The denial rate for H-1B petitions for initial employment was 2% in FY 2022.) Research by Britta Glennon, an assistant professor at the Wharton School of Business at the University of Pennsylvania, found new restrictions on H-1B visas likely result in more jobs leaving the United States, concluding, “[A]ny policies that are motivated by concerns about the loss of native jobs should consider that policies aimed at reducing immigration have the unintended consequence of encouraging firms to offshore jobs abroad.” The clarification on H-1B eligibility on the USCIS website should be a positive step for employers, high-skilled professionals and the economy. Kevin Miner said, “The USCIS action will help to continue to allow businesses to obtain the kind of high-skilled talent needed to keep the economy moving, especially for new and emerging roles that have resulted in H-1B petitions being denied in the past.” For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.