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IMMIGRATION JANUARY 03, 2025 | The Indian Eye 40
While the H-1B Modernization Rule
Will Insulate the H-1B Program from Trump,
It Gives More Power to Investigate Alleged
Fraud Which Trump Will Readily Use to Harass
Employers and Workers
BY CYRUS D. MEHTA ented workers, and improv- annual statutory limit on policy of “prior deference” fields provided that each of
ing the integrity and oversight
when deciding extension those fields is directly related
H-1B visas.
T he Department of of the program.” To imple- • Extends certain flexibilities requests of previously ap- to the duties of the position.
Homeland
for students on an F-1 visa
proved H-1B petitions. The
It remains to be seen
Security
ment this rule, a new edition
(DHS) announced a fi-
of Form I-129, Petition for a
status to H-1B to avoid
policy would insulate H-1B degree must be in a directly
nal rule, effective January 17, Nonimmigrant Worker, will seeking to change their codification of the deference how the requirement that the
2025, that will “significantly be required for all petitions disruptions in lawful status workers from policy chang- related specialty plays out
enhance U.S. companies’ beginning January 17, 2025. and employment autho- es under the Trump admin- in emerging AI occupations.
ability to fill job vacancies Among other things, the final rization for those F-1 stu- istration. Even if the DHS However, the need to show
in critical fields, strengthen- rule: dents. requires its officers to view only a logical connection be-
ing our economy.” The new • Updates the definition and • Allows U.S. Citizenship H-1B extension requests tween the degree and duties
rule “modernizes the H-1B criteria for specialty occu- and Immigration Services more strictly, under the def- rather than an “exact corre-
program by streamlining the pation positions and for (USCIS) to process appli- erence policy, now codified spondence” should resolve
approvals process, increasing nonprofit and governmen- cations more quickly for in the regulation, the USCIS some of the concerns.
[DHS’s] flexibility to better tal research organizations most individuals who had would not be able to deny a With regards to H-1B
allow employers to retain tal- that are exempt from the previously been approved previously approved H-1B workers placed at client sites,
for an H-1B visa. petition unless “there was a if the worker will be “staffed
• Allows H-1B benefi- material error involved with to a third party”, it is the re-
ciaries with a controlling a prior approval; there has quirement of the third party
interest in the petition- been a material change in to establish that the degree
ing organization to be circumstances or eligibili- is directly related to the po-
eligible for H-1B status ty requirements, or there is sition. The USCIS may also
subject to “reasonable new, material information require evidence such as
conditions.” that adversely impacts the contracts, work orders, or
• Codifies USCIS’ petitioner’s, applicant’s or similar evidence between all
authority to conduct in- beneficiary’s eligibility.” parties in the contractual re-
spections and impose The definition of special- lationship showing the bona
penalties for failure to ty occupation now requires fide nature of the position
comply. the attainment of a bache- and the educational require-
• Requires employers lor’s degree or higher in a ments to perform the duties.
to establish that they “directly related specialty” This may incentivize USCIS
have a bona fide posi- as a minimum as a minimum to issue requests for evidence
tion in a specialty occu- for entry into the occupa- when IT companies place
pation available for the tion. The requirement that H-1B workers at client site.
H-1B worker as of the the bachelor’s degree be in The rule also codifies
requested start date. a directly related specialty USCIS’ authority to conduct
• Clarifies that the continues to cause concern inspections and impose pen-
Labor Condition Appli- as it would preclude occupa- alties for failure to comply.
m of cation must support and tions that are now related to It will require employers and
CYRUS D. MEHTA & PARTNERS PLLC properly correspond degrees in a directly related workers to comply with unan-
specialty. On the other hand, nounced worksite visits, and
with the H-1B petition.
• Requires the peti- the concern that comment- this aspect of the rule could
tioner to have a legal ers had when the H-1B rule be taken advantage of by
presence and be sub- was proposed last year have the Trump administration to
ject to legal processes been addressed as “directly harass employers and work-
in court in the United related” means that there is ers, find fraud when there
States. a logical connection between is none, and find reasons to
One of the high- the required degree and the deny pending H-1B petitions
lights in the sweeping duties of the position. The or extension requests. The
2 6th Floor H-1B modernization regulation also allows for a rule gives the fraud director-
rule is that is codifies the range of qualifying degree ate to enter businesses and
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