Comments to DHS on Strengthening the H-1B Nonimmigrant Visa Classification Program

Wednesday, December 9, 2020 - 1:15pm

December 7, 2020

Chief Charles L. Nimick
Business and Foreign Workers Division
Office of Policy and Strategy
U.S. Citizenship and Immigration Services
U.S. Department of Homeland Security
20 Massachusetts Avenue, NW
Washington, D.C. 20 259

By electronic submission: www.regulations.gov

RE: Strengthening the H -1B Nonimmigrant Visa Classification Program
85 Fed. Reg. 6 3918 (Octo ber 8, 20 20 )
RIN 16 15 -AC13

Dear Chief Nimick :

The U.S. Chamber of Commerce submits the following comments regarding the interim
final rule (IFR) referenced above. Companies across various industries are very concerned about
the operational disruption s this rule would impose upon their businesses. The various provisions
contained within this IFR inject a significant amount of uncertainty into whether a company will
be able to continue meeting its workforce needs in the U.S.

A key contributing factor as to why American companies are anxious about the impact
this rule will have on their businesses is due to the manner in which the IFR was promulgated.
DHS chose to bypass the typical notice -and -comment process prescribed by the Administrative
Procedure Act and published this rule as an Interim Final Rule, citing the imperative of
addressing the “economic crises, including high unemployment” caused by COVID -19. 1 The
attempted imposition of these significant changes to the H -1B program’s operation without
affording stakeholder a meaningful opportunity to provide feedback was so troubling for many
companies that the Chamber and many others filed suit against the federal government to prevent
this rule from taking effect. While the Federal District Court for the Northern District of
California recently decided to set this rule aside and prevent its implementation, companies
remain worried about the impact this rule will have on their companies should DHS seek to
finalize the IFR in the coming weeks.

It is our understanding that DHS intends to issue a final Strengthening the H-1B rule
soon. We implore the agency to halt its plans to finalize this rule hastily and withdraw this rule in
its entirety.

The myriad changes made by the IFR would impose significant burdens on employer s
that rely upon H -1B workers for their critical workforce needs. The restrictive eligibility
standards, the arbitrary compliance obligations imposed upon companies that place their H -1B
workers at third-party worksites, and onerous paperwork burdens are significant concerns to
many Chamber members, as these provisions would disrupt their business operations in a manner
that inhibits economic growth and job creation in the U.S.

THE CHANGES TO “SPECIALTY OCCUPATION” DEFINITION AND CRITERIA
EXCEED CONGRESSIONAL AUTHORITY

The change s DHS made to the “specialty occupation ” definition significantly narrow the
types of people who can qualify as an H -1B worker in a manner that is inconsistent with the
statutory text governing the H -1B program’s operation. The relevant text of the Immigration and
Nationality Act (INA ) state s that a “specialty occupation” is one that requires “theoretical and
practical application of a body of highly specialized knowledge, and … attainment of 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." 

DHS asserts the changes contemplated in the IFR are being made to ensure conformity
with the statutory definition and promote consistent adjudication.4 However, the rule rewrites
the relevant regulatory text in a manner that significantly restricts eligibility for an H-1B visa in a
manner that was never contemplated by Congress. DHS adds further clarifying language in two
key sections that define the contours of the “specialty occupation” definition that limits program
eligibility by requiring that the college degree that a prospective H -1B worker must possess has
to be in a “directly related ” specific specialty. 5

With regard to the “specialty occupation ” definition, the statutory text only refers to an
H-1B worker having to possess a “bacheLor’s degree in the specific specialty (or its equivalent )”
and the new “direc tly -related ” qualifier insert ed in the “special ty occupation ” defini tion operates
to constrain H-1B eligibility to a greater extent that what Congress desired when it crafted these
provision s of the INA. 6 DHS argues that th is regulatory text shoul d not be “misconstrued as
necessarily requiring a singular field of study, ”but it is difficult for many employers to see how
USCIS adjudicators would implement these regulatory changes in a manner that wouldn’t result
in that happening in many circumstances. DHS provided examples on degrees in engineering or
quantitative fields not being sufficient to meet the “specialty occupation ” because those fields are
not “directly related ” to the job in the IFR’s preamble, and many employers fear that DHS would
follow a similar ap proach in how it adjudicates these questions for many other types of H-1B
workers that they need for their companies.

Many com panies expressed to us similar anxiety regarding the I FR ’s changes in the
criteria used by USCIS to determin e wh ether a position offered by an employer is in a “specialty
occupation. ”9 DHS claims that t he current regulatory tex t, which uses they qu alifying terms
“normally, ” “comm on, ” or “usually ” with res pect to the degree that the H-1B employee
possesses, e.g. a degree is “normally ” required for a particular position .10 DHS further argues
that the current regul atory text creat es ambiguity and that since the aforementioned qualifying
words are not contained in the statute, then they should be eliminated from the governing
regulations. 11 The agency’s logic her e is questionable. On the one hand, DHS seeks to not
simply eliminate the modifying language that it believes is inconsistent with the statute.
However, on the other hand, DHS proposes to add its own qualifying language with its “directly
related ” references. In this regard, the words “directly related,” just like the current qualifying
references to “normally, ” “common, ” and “usually, ” appear nowhere in INA §214 (i) ; as such, if
DHS w ere being logically consistent, it’s preferred modifying l anguage to the criteria also has no
place in the governing regulations either.

More importantly, the current text used in the governing regulations does not create
ambiguity – what it does is create flexibility for the agency to adjudicate petitions in the way that
Congress intended. The executive branch agenc y that ha s been respons ible for adjudicatin g H -
1B petitions has changed with the passage of tie, but DHS’s IFR is the first example of any
federal agency seeking to constrain the H -1B program’s application in a manner that is more
restrictive than what Congress authoriz ed und er the INA .12 While DHS officials may have
misgivings abou t the current regulatory te xt, the Department cannot seek to replace the current
regulatory text with language that is more restrictive than what is contained in the statute. That
would be an impermissible exer cise because doing so requires DHS to invoke autho rity that it
does not possess. Simply put, the Depar tment cannot res trict program eligibility beyond what
Congress intended by substituting its ju dgment on its preferred policy for th e policy set forth by
the legislative branch.

THE CHANGES TO THE “SPECIALTY OCCUPATION” DEFIN ITI ON AND
CRITERIA CAUSE SIGNIFI CANT BUSI NESS DISRUPTIONS

An all -but -certain result from these new restrictive definitions and criteria is that many
prospective H-1B recipient s will be ineligible to work in the U.S. This affects not only prospective
H-1B workers currently outside the U.S., but also prevent many H-1B employees from continuing to work in the U.S. This latter concern was expressed to us by many companies , including technology firms, financial services companies, manufacturers, retailers, among many others.

Regarding the disruptions to current business operations, many employers have relied upon
the H-1B program’s operations to their detriment, as they’ve made business plan s and expended
limited company resources to ensure workforce continuity. Relatedly, the H -1B workers and their
families have relie d upon the rules as they currently exis t and made various decisions to remain in the
U.S. To that end, many current H -1B workers have accepted offers from their employers to work in
the U.S. permanently and began the process of being sponsored for lawful permanent resident status
through their employer. The significant changes that DHS seeks to impose through this IFR pulls the
rug out from under U.S. companies, their H -1B workers, and the worker’s families in an incredibly
disruptive fashion.

From a practical standpoint, if the se new rul es allowed to stand, these provisions would be
the proxim ate cause for various operation al disruption s for many different companies e.g. delayed
R&D initiatives, ongoing projects halted, work being moved offshore to follow workers that must
leave the U.S. The uncertainty and disruption caused by these changes will increase business’
operational costs and diminish productive capacity and efficiency, leading to slower business growth
and job creation. Lastly, the costs that companies would need to incur to replace the workers they
can no longer employ in the U.S. would be significant, as companies would be forced to recruit and
train new workers, assuming that willing, able, qualified, and available U.S. workers can be found to
fill these newly -created job vacancies. Many companies are worried that if many o f their current H -
1B workers cannot extend their status due to these regulatory changes, they will be unable to fill
these openings.

Another concern our members is how these disruptive these new changes will be to
companies industries that contain new and emerging fields of employment. Oftentimes, degree
programs at many U.S. universities simply don’t offer one specific degree in a field that would fit
into the IFR’s new “directly -related specific specialty ” rubric with respect to the job being offered to
the H -1B worker. For example, a notable health care provider from the western part of the country
informed us about their concern regarding the new important field of bio informatics. Individuals
seeking employment in this field could have degrees in computer science, b iology, or engineering,
but none of those fields are not “bioinformati cs.” This presents a risk to this employer in that if the
compan y needs an H -1B worker in this field, it might not be able to obtain sa id worker due to the
rigid new defin ition and criteria lan guage being established by DHS in this IFR. Stakeholders in
many other industries, suc h as financial technology firms, manufacturers, among others, have similar
concerns. These concerns are all tied to their respective company’s ability to innovate and create
new products and services. In these emerging fields, employers often times need workers with a mix
of skills that don’t fit cleanly into an existing occupational classification. If businesses are not
confident that they can meet these critical workforce needs, it affects all sorts of other important
decisions that influence whether companies expand their U.S. operations and drive domestic job
creation. We strongly urge DHS to refrain from finalizing this rule, or any future rule, with these or
similar provisions contained within it.

EMPLOYERS NEED FURTHER CLARITY ON HOW  THE SPECIALTY
OCCUPATION CRITERIA WILL BE ADJUDICATED

Many com panies have expressed reserv ations over the manner in which DHS sought to
impose the special ty occupation criteria. In the rule’s preamble, DHS explicitly states that even
though an employer must meet at least one of the cr iteria set forth in the ne w regula tory text,
meeting that crit eria might ne vertheless be insuffici ent for the purposes of showing that th e job is
in a specialty occupation. The prospect of DHS h olding dif ferent employers to different
standards for program eligi bility has many businesse s concerned that USCIS is reserving the
authority to adjudicate H-1B petitions inconsistently and arbitrarily.

DHS claims that th ese changes elimi nate any confusion that the interpretation of these
provisions have cause d for stakeholders, but these change s will likely cause co nfusion for
businesses and their H -1B workers. M any of the H -1B petitions that American employers file
are for their current workers, many of whom have an approved I -140 Immigrant Petiti on for
Alien Worker and are patiently waiting for their green card while they work in the U.S. Given
these new criteria have become more stringent under the IFR and DHS stated that a peti tioner
may need to meet more than one of the se criteria for their H-1B worker to be elig ible for a visa,
the future employment of that H -1B wor ker in the U.S. becomes significantly less certain. Th e
lack of clarity on how these criteria will be adjudicated by USCIS will create more confusion for
stakeholders, as these provi sions provide no meaningful guidance to empl oyers with respect to
what standards(s) they will be held to as the y seek visas for their H -1B workers. Th e I FR ’s lack
of any meaningful assurances to stak eholders with regard to how their H-1B petitions will be
adjudicated need lessly increase s the uncertainty companies must face in order to meet their
work force and maintain their productivi ty levels. We implore the Department to discard the
approach in the IFR and embrace the prior criteria tha t have been in place for several years. If an
H-1B petitioner shows that the company me ets one of the four listed criteria, that evidence
should be treated as both necessary and sufficient for satisfying the burden of prov ing to the
government that the worker will be employed in a specialty occupation.

ARBITRARY VISA VALIDITY LIMITATIONS FOR H -1B WORKERS AT THIRD -
PARTY WORKSITES WI LL HARM EMPLOYERS

DHS seeks to limit the visa valid ity peri od for an H -1B worker that will b e working at a
third -party client’s worksite to just one year in duration. The Department justifies this decision
in large part on its assertions that companies that place their workers at third -part y sites are more
likely to commit H-1B fraud and abuse. DHS used a Department analys is tha t sam pled the
compliance review of certain H-1B employers as evidence to back up th is point .1

The Chambe r acknowledges that comba ting fraud and abuse in the H -1B program is a
legitimate government objective. However, limit ing the visa validity period for certain H -1B
workers simply because their employ er place s them at a third -party client worksite is another
arbitrary decision by the Department to substitute its judgment for that of an American employer.
Given DHS ’ insistence on H-1B employers providing US CIS with co rroborating evidence of
work in a specia lty occupation at the time of filing, it is illo gical for the government to prevent
an employer from employing an H-1B worker at a third-party client site for one year if the
employer can show they have concrete, non -speculative work for the emp loyee fo r a period in
excess of one year. While USCIS ’s site visit data suggests that com panies eng aging in third -
part y placement s have significantly higher noncompliance rates than companies that do not
engage in this practice, the agency provides no evidence to reasonabl y infer that requiring these
employers to fil e more petitions for their workers would lead to increased program compliance.

These visa validity limitations will have a significant impact on affected employers. T he
costs associated with maintaining their workforce capacity in the U.S. will increase substantially
due to the need to file more immigration petitions to maintain workforce continuity. The impact
of these changes will be most acute on firms that have 50 or more employees and 50 % of their
aggregate workforce are either H -1B or L -1 workers, who will have to an additional $4,000 per
worker should USCIS ’ Final Fee Schedule Rule take effect. 18 In addition, this provision will
cause an increase s in the overall filing of H -1B petitions, which could easily exacerbate the
current problems USCIS faces with case processing delays and backlogs.

DHS should not single out certain companies and impose this unique compliance burden
upon them, as this will harm companies in various industries. Many think these additional
paperwork and cost burdens will only apply to IT services companies or accounting firms that
employ a third-party services business model, but there are many health care providers who
place foreign national physicians at multiple health care facilities. There is no ind ication in the
IFR’s text that would indicate that DHS considered how many companies, and in what
industries, would be negatively impacted by these new compliance burdens.

EMPLOYERS NEED MORE SPECIFICITY WITH REGARD TO DHS ’
CORROBORATING EVIDENCE AND SITE VISIT REQUIREMENTS

The IFR requires that at the time of filing an H -1B petition, the employer must establish
that it has actual work in a specialty occupation available for the beneficiary as of the start date
of the validity period requested on the H -1B petition. 19 The IFR further expands the types of
corroborating evidence that petitioners must submit their workers are to be placed at third -
party client sites. In creating th ese additional evidentiary burdens for ce rtain companies, DHS
takes the position that the current, longstanding requirements for statements by employer s are not
sufficient to estab lish work in a specialty occupation. Specifically, the IFR require employers to
submit contracts, work orders, “or other similar evidence,” and that “the totality of the evidence
submitted by the petitioner must be detailed enough to provide a sufficiently comprehensive
view of the work available and substantiate, by a preponderance of the evidence, the terms and
conditions under which the work will be performed. ”

Increasing the paperwork burden for certain employers in this manner will raise the costs
that affected employer's mu st bear to file H-1B petitions, with the potential for significant
disruptive impacts on a company s ability to ma intain the H-1B workers it currentl y emp loys in
the U.S. DHS provides no clarity as to what exactly an employer must provide to meet this
burden, aside from the assertion that the e vidence “must be detailed enough to provide a
a sufficiently comprehensive view of the work available and substanti ate, by a preponderance of
the evidence, the terms and con ditions ” of employment. Furthermore, USCIS will make these
dete rminations on a case -by -case basis.

It is incumbent upon DHS to notify stakeho lders what is required of them to mee t this
burden with a reasonable degree of specificity. Several Chambers members view th e language
used by DHS as notifying s takeholders that “the bu rden is whatever we feel it should be, ” which
leaves employers sub ject to these requirements in a precarious position of having to guess what
exactly constitutes enough information for the government to render a favorable decision.

A similar lack of clarity and certainty is present in the Department’s site visit authority
contained in the I FR. The regulatory language crafted in the IFR is, in the view of many
companies, very open-ended and provides litt le in the way of guidance to an employer as to what
actions they would need to take in order for USCIS to find that the employer complied with the
agency’s request to verify the information contained within an H -1B petition. 23 Th e sweeping
authority claimed b y the agency provid es USCIS with an opportunity to treat employers wi th
unchecked authority to engage in on-site inspecti ons and delay the adj udication of H -1B visa
petitions indefinitely. While the Chamber appreciates the Department’s view that site visits are
important to maintaining program integrity, the Department cannot claim unchecked authority to
engage in these visits. If US CIS wants to conduct si te visit s, then USCIS must establish
procedures that will govern these investigations and provide employers with the type of due
process to ensure that everyone’s interests in this system are properly upheld.

CONCLUSION

Businesses across multiple sectors of the U.S. economy are extremely concerned about
the operational disruption s their companies would experience should this IFR, or a substantially
similar rule, be implemented in the near future. This IFR suffer s from many critical flaws and
we implore the Department to withdraw this rule.

Thank you for considering our views.

Sincerely,

Jonathan Baselice
Executive Director, Immigration Policy
U.S. Chamber of Commerce