Proposed Policy Change: New Definition of ‘Specialty Occupation’ Coming in 2019

The USCIS continues to revamp the H1B visa program, and does not seem to need new legislation to reduce the number of approved petitions for foreign workers.  The most recent proposal, titled “Strengthening the H1B Visa Classification Program” states that the Department of Homeland Security (which includes USCIS) will enact a new definition of ‘specialty occupation’, as well as how the employer-employee relationship is defined.

‘Specialty Occupation’

The definition of specialty occupation goes right to the heart of the H1B visa program, and is what applicants focus on in their petitions.  Failure to demonstrate that a worker is in specialized field will result in denial of the petition. This is to prevent companies from hiring cheaper labor for unskilled positions and displacing more costly US workers.

Until now, specialty occupation has been one that required a Bachelor’s’ degree or higher in a specialized field.  That broad definition is going to be changed, at least in how it is interpreted. As an example, the following job titles that have been denied recently as not qualifying for as a specialty occupation include:

  • Computer Programmer
  • Systems Analyst
  • Business Analyst
  • Market Research Analyst
  • Project Manager
  • General Manager
  • Operations Manager
  • Construction Manager

Admittedly, some of these are fairly vague job descriptions, so you can’t blame the USCIS for rejecting them, but this list is only going to grow.  

Masters of Business Administration (MBA) Not a Qualified Degree

The real blow however, is that cases are being dismissed where the applicant has an MBA, and the USCIS justifies their decision with the claim that an MBA is not a degree in a specific subject.  One could say the same thing about a law degree or medical degree, since those are all broad areas of professional study that require a base of knowledge in many subjects.

This really runs counter to the stated USCIS policy of only attracting the ‘best and brightest’ H1B applicants, as even holders of Masters degrees are being turned away from the US job market.

What is an Employee-Employer Relationship?

Another change coming is a narrowing of the definition of employee-employer relationship, ostensibly to curtail the practice of outsourcing and contracting IT labor to third parties.  We may see a real trend toward limiting H1B visas to direct hires, rather than by outsourcing companies. This could have a real effect on the number of Indians awarded H1B visas, who at this point receive 70% of all H1Bs.

How Do These Changes Go into Effect?

These policies are being discussed and decided on now, to be implemented in August of 2019.  They are simply administrative rule changes, and therefore don’t need congressional approval via new legislation.  This is how all changes to the H1B visa program have been made the past two years, which may seem unfair but that is the kind of discretion given to federal agencies to interpret and apply existing regulations.

Despite that, agency rule changes can be challenged in court if it seems they have gone beyond the scope of their discretion.  That is already happening with one recent lawsuit brought by IT companies that feel the USCIS is exceeding their authority, and that only Congress can change the definition of ‘specialty occupation’ or ‘employee-employer relationship.’  We can expect those lawsuits to continue as the USCIS keeps changing the H1B visa program to limit the number of approved petitions.

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  • November 26th, 2018
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