The U.S. Citizenship and Immigration Services (USCIS) has provided a welcome clarification for employers, the U.S. economy, and skilled professionals on eligibility for H-1B petitions in specialty occupations. USCIS has made clear that a previous Trump administration attempt to restrict the positions that qualify for an H-1B petition is not USCIS policy.
The addition of this footnote is significant for employers, attorneys, and skilled professionals who have experienced H-1B denials and Requests for Evidence based on sudden and questionable policy changes during the previous administration. In this article, we will delve deeper into the USCIS’s recent clarification and its implications for H-1B visa seekers and the US economy.
The H-1B program is a non-immigrant visa category that allows U.S. employers to temporarily employ foreign workers in specialty occupations. Specialty occupations are those that require the theoretical and practical application of a body of highly specialized knowledge and 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.
On the USCIS website, under H-1B Specialty Occupations, the agency recently added a footnote on occupations that “usually” require a bachelor’s degree. The footnote states, “‘Normally,’ ‘common,’ and ‘usually’ are interpreted based on their plain language, dictionary definitions. They are not interpreted to mean ‘always.’”
Clarifications and Changes
Although 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.
“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 H-1B program has been under intense scrutiny and changes in recent years. The Trump administration implemented a policy to restrict the positions that qualify for an H-1B petition, which was subsequently ruled unlawful. The policy change resulted in an increase in H-1B denials and Requests for Evidence, causing confusion and uncertainty for employers and foreign workers.
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. The USCIS clarification brings much-needed clarity to this issue and helps to ensure that skilled professionals can continue to come to the United States to work in specialty occupations.
Economy and Scrutiny
The H-1B program is crucial for many industries, including technology, science, engineering, and mathematics. The program allows employers to hire highly skilled foreign workers when qualified U.S. workers are not available. The program also provides foreign workers with the opportunity to work in the United States, gain valuable experience, and contribute to the U.S. economy.
The USCIS clarification is a positive development for the H-1B program and for the U.S. economy as a whole. The program provides a significant benefit to the United States by enabling the country to attract and retain highly skilled workers, who help to drive innovation, create jobs, and contribute to economic growth.
In recent years, the H-1B program has faced criticism from some who argue that it takes jobs away from U.S. workers. However, many employers and industry groups argue that the program is necessary to fill critical skills gaps and remain competitive in the global economy. The USCIS clarification is an important step toward ensuring that the H-1B program continues to function as intended
the USCIS’s recent clarification on H-1B eligibility requirements for specialty occupations is a welcome development for employers, skilled professionals, and attorneys who have been affected by sudden and questionable policy changes during the previous administration. The addition of a footnote to the USCIS website clearly stating that “normally,” “common,” and “usually” are not synonymous with “always” provides much-needed clarity on the interpretation of these terms in H-1B petitions.
The USCIS’s recognition of situations where specialized roles do not require a degree 100% of the time is a step towards a more flexible and adaptive immigration system that can keep up with the rapid pace of technological and business developments. Overall, this clarification is a positive sign for those seeking to obtain H-1B visas and contribute to the US economy in specialized fields.