MUMBAI: Nasscom, the trade association of the Indian IT sector has stated that some sections of the proposed rule for modernization of the H-1B program, released by the Department of Homeland Security (DHS), raise concerns for the industry.
For example, the proposed tightening of the definition and requirements for H-1B ‘specialty occupations’ narrows the scope of applicants who will qualify for an H-1B visa and ignores the nature of our modern workforce, not found in the Immigration and Nationality Act (INA).This and other hurdles in the proposed rule create difficulties for companies attempting to hire the necessary skilled workers to fill key, and currently unfilled, jobs across STEM fields.

Currently, the 60-day period for inviting public comments is open and Nasscom will be submitting detailed comments to address the concerns of the IT sector.

Cyrus D. Mehta, a New-York based immigration attorney said, “There are some features in the proposed rule that will incentivize the USCIS to issue requests for evidence and potentially deny the H-1B application. A job-position will not be considered a specialty occupation for H-1B purposes if attainment of a general degree, such as business administration or liberal arts, without further specialization, is sufficient to qualify for the position. For instance, if an H-1B petition is filed on behalf of a marketing manager who has a degree in business administration without any specialization in marketing, the H-1B petition may not be approved. The comments to the rule also provide that a petition with a requirement of an engineering degree in any field of engineering for a software developer would not generally satisfy the legal requirements for H-1B classification.”

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A significant chunk of H-1B visas are held by Indians working in the technology sector. The proposal states that when a H-1B worker is staffed to a third party, the requirements of that third party, and not the sponsoring employer, are most relevant when determining whether the position is a qualifying specialty occupation.
This is a mixed bag. Mehta points out that it would be difficult for the sponsoring employer to obtain such a justification from a client, and this too could result in a barrage of requests for evidence and potential denials of the H-1B application. On the other hand, there will be no need to demonstrate an employer and employee relationship under common law, which was often used by the USCIS to deny visa-applications if the employer could not establish that it controlled the H-1B worker’s employment at a third party site.
Nasscom adds that at the same time, it applauds several welcome changes found in the proposed rule that reaffirm the Biden Administration’s recognition of the substantial gap in supply and demand for skilled workers. Many of these changes will streamline the H-1B process and ease the burden on employers and potential beneficiaries as they navigate the lottery and application processes. Among these positive changes are the broadening of definitions for cap-exempt employers and increased start date flexibility for H-1B applicants.

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