Final Interim Rule on the Definitions for H-1B Visa

Final Interim Rule on the Definitions for H-1B “Specialty Occupations”

2.5 minute read

"The US Citizenship and Immigration Services (USCIS) announced on May 20, 2021, that the Department of Homeland Security (DHS) has officially removed the Interim Final Rule to redefine the definition of H-1B Visas. This Interim Final Rule was introduced in October 2020 to limit the type of applicants eligible for the H-1B Visas to highly skilled workers with advanced degrees."

Written by My Visa Source Team
Published on: Jun 30, 2021

The US Citizenship and Immigration Services (USCIS) announced on May 20, 2021, that the Department of Homeland Security (DHS) has officially removed the Interim Final Rule to redefine the definition of H-1B Visas. This Interim Final Rule was introduced in October 2020 to limit the type of applicants eligible for the H-1B Visas to highly skilled workers with advanced degrees.

However, in December 2020, the US District Court for the Northern District of California vacated the rule. Now, the Biden administration has issued a final order on removing the Interim Final Rule after it was challenged before the Federal Court and the DHS failed to comply with the Administrative Procedures Act. The DHS also failed to provide a valid reason to bypass the notice and comment steps in the decision-making process. After all this, it was finally removed from the Code of Federal Rules.

What Was the Previous Interim Final Rule About?

The Trump administration issued an order in October 2020 seeking to narrow the definition of specialty occupations for the H-1B Visas. This was done to discourage employers from hiring foreign nationals for low-wage jobs and to prioritize American workers instead.

This new rule would mean that applicants with a bachelor’s degree alone could no longer meet the eligibility criteria for the H-1B Visa. Instead, their degree must be specifically related to their field of work. This rule was titled “Strengthening the H-1B Nonimmigrant Visa Classification Program.”

Under this new rule, the definitions for words like “worksite”, “third-party-worksite”, “United States Employer”, were also affected. The new rule also limited the validity period to one year for H-1B Visas obtained through third-party placement petitions.

How Will the H-1B Visa Holders Be Affected Now That This Rule Has Been Revoked?

Fundamentally, since the rule was revoked, the definitions for specialty occupation will remain the same, that is, a bachelor’s degree is commonly required to work in the industry, or the knowledge required to perform the job is associated with a bachelor’s degree or an equivalent.

The definition for “United States employer” will also remain unchanged, that is, a person, firm, corporation contractor, or other organization in the US that engages a person to work in the US. This means the employer must prove that they are hiring, paying, firing, supervising, and otherwise controlling the work of any such employee.

Every year, 85,000 new H-1B Visas are issued. Almost 70% of all H-1B Visas go to East Indian nationals. This visa is commonly issued to the employees of big tech companies such as Google, Microsoft, Amazon, Facebook, etc.

Recently, the Biden Administration ended the ban on the entry of H-1B Visa holders and also removed the proposed rule to deny work authorization to the spouses of H-1B Visa holders. This shows that the administration is in support of reinstating the old rules and definitions for H-1B Visas.