DHS Revised Definition Of Employee-Employer Relationship Could Be A Disaster For U.S. Healthcare And IT Industries

As attacks on the H-1B visa continue, the current administration is now looking to tighten its stronghold on tech companies by redefining the employer-employee relationship. However, the change may also negatively impact American I.T. and healthcare industries.

The goal of redefining the “employer-employee relationship” in the proposed regulation is undoubtedly aimed at blocking staffing companies and other third-party placement agencies from accessing the H-1B visa classification. The Department of Homeland Security (DHS) contends that American jobs will be better protected by re-writing the qualifying terms.

Rather than relying on overseas placement agencies to expedite the hiring process for H-1B prospects, large companies such as UnitedHealth Group, Facebook, Google and Microsoft may be forced first to establish unique relationships with each and every potential H-1B hire before bringing them to the U.S.

Before drafting the new language, DHS should take into consideration how other industries such as healthcare could suffer unintended consequences from a too-narrow definition. When it comes to third-party worksites, staffing companies are generally top-of-mind. However, nearly all doctors and physical therapists practice at multiple sites/locations that do not necessarily fall under the control of the sponsoring employer, but that does not delegitimize the employer-employee relationship.

In order to avoid major industry disruptions, new regulation must be written to ensure H-1B visas remain accessible to the medical field. Otherwise, there will be a shortage of healthcare providers in rural areas and hospitals where patients are dependent upon international medical graduates.

Making these high skilled visas tougher to obtain for American companies would actually accomplish the opposite of what DHS intends and may propel information technology companies to look elsewhere for people to fill highly technical positions, taking Americans’ jobs along with them.

Other countries like Canada, India and Singapore have relaxed their immigration policies to encourage the inflow of skilled foreign talent (and American companies) in an effort to bolster their economy and dominate the tech industry.

The proposed change in terminology pushes for close monitoring of H-1B petitions to ensure they are submitted in accordance with restrictions implemented by the revised definition.

Importantly, H-1B visa petitioners must keep in mind that if the correct supporting documentation and information is not properly submitted with the initial petition, the adjudicating officer now has the authority to automatically deny the petition instead of issuing a Request for Evidence (RFE). In cases when an RFE is issued, the petitioner has 90 days to submit all requested evidence.