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international law quarterly

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H-1B Processing, from page 23

disciplines can qualify for the position. Despite the nonsensical nature of some of these RFEs, practitioners must realize that these delays are meant to thwart the process and discourage filings of H-1B petitions. In this setting, practitioners need to follow the regulations and prove that one or more of the following holds true in order for the position to qualify as a specialty occupation: (1) A bachelor’s degree or higher is normally required for the position; (2) The degree requirement is normal to the employer for the position; (3) A degree requirement is normal to the industry, or the position is so complex or unique that the duties could be performed only by a degree holder; or (4) The nature of the duties for the particular position is so highly specialized and complex that the knowledge required is usually associated with the attainment of a bachelor’s or higher degree.27 Practitioners can establish one or more of these prongs by submitting job postings or advertisements for the position, as well as copies of the degrees of other individuals performing the job with the employer in similar positions. Practitioners may also submit expert opinions from professionals in the requested field or industry-related professional associations attesting that a degree is a normal requirement for the position or that the duties are so complex and specialized that a bachelor’s degree in a specific field is required. Achieving favorable results for our clients is still a viable option with the proper preparation and legal arguments.

Combating Fraud and Abuse in the H-1B Visa Program On 22 February 2018, USCIS launched the Combating Fraud and Abuse in the H-1B Visa Program measure, aimed at uncovering employers that abuse the H-1B visa program, which may negatively affect U.S. workers, decreasing wages and opportunities as these employers import more foreign workers.28 The policy language in


the initiative harkens back to President Trump’s policy reasons of protecting American workers for the “Buy American and Hire American” Executive Order: “Yet, too many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged.”29 The initiative establishes an email address dedicated to receiving information from employees about suspected H-1B fraud or abuse, protection of H-1B employees who report suspected H-1B abuse and fraud, and the expansion of random administrative site visits to ensure that employers and foreign workers are complying with requirements of the H-1B nonimmigrant classification.30

H-1B Petitions and Third-Party Worksites On 22 February 2018, USCIS also published a new memorandum titled “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites.”31 This memorandum superseded two previous ones, and USCIS will now require employers to include additional information and documentation in H-1B petitions outlining the work done at third-party worksites and showing that the employer-employee relationship between the petitioner and the H-1B beneficiary will continue to exist.32 The guidance also requires petitioning employers to provide documents including the company’s work product, statements of work, letters from each end-client company, and contracts.33 Additionally, the memorandum reiterates the regulatory requirement for the petitioner to provide itineraries that include the dates and locations of the services to be provided.34 Practitioners should be prepared for increased scrutiny from USCIS on H-1B petitions for employees working at third-party worksites in establishing that the employer will maintain an employer-employee relationship with the applicant for the duration of the requested validity period.

Conclusion Under the Trump administration, it is clear that USCIS, via policy memoranda, presidential executive order, fraud prevention initiatives, and a spike in RFEs, is

Profile for International Law Section

International Law Quarterly  

Fall 2018, volume XXXIV, no.2

International Law Quarterly  

Fall 2018, volume XXXIV, no.2

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