Bona Fide Job Offers for Specialty Occupation Positions

The Department of Homeland Security (DHS) has proposed significant changes to the H–1B visa regulations, explicitly targeting the authenticity of job offers for specialty occupations. The proposed amendments to 8 CFR 214.2 aim to tighten the criteria for a bona fide job offer, ensuring that positions are genuine, specialized, and meet the educational requirements necessary for the beneficiary. This post explores these changes, focusing on contracts, non-speculative employment, and the relationship between the Labor Condition Application (LCA) and the H–1B petition.

A. Contracts and Evidence of Bona Fide Employment

Under the proposed changes, DHS seeks to codify USCIS’s authority to request contracts, work orders, or similar evidence to establish the eligibility of a specialty occupation. The evidence must demonstrate a clear contractual relationship between all parties involved, outlining the terms of the beneficiary’s work and the minimum educational requirements necessary for the position. This includes the master services agreement and any accompanying statements of work, which should detail the scope of services and responsibilities among the parties.

The proposed changes emphasize the need for detailed documentation beyond general obligations, focusing on the work’s specifics. This approach prevents companies from submitting speculative or insufficient evidence regarding in-house projects without a proven track record of such endeavors.

B. Non-Speculative Employment Requirement

DHS’s proposal also addresses the issue of speculative employment, defining an explicit requirement that the petitioner must establish a non-speculative position available for the beneficiary at the start of the validity period. This aligns with the statutory definition of an H–1B worker and underscores the necessity for the offered position to be concrete and aligned with the beneficiary’s qualifications. The move seeks to uphold the integrity of the H–1B program by ensuring that positions are genuine and contribute to the U.S. labor market without undermining the wages and working conditions of U.S. workers.

C. LCA Correspondence With the H–1B Petition

Another critical aspect of the proposed amendments is ensuring that the LCA supports and corresponds with the H–1B petition. This entails a closer alignment between DHS and Department of Labor (DOL) regulations, clarifying DHS’s authority to determine the adequacy of the LCA in supporting the petition. By requiring that the LCA accurately reflects the offered position, including details such as wage rates, occupational classification, and place of employment, DHS aims to enhance the transparency and integrity of the H–1B visa application process.

These proposed changes represent a significant step toward refining the H–1B visa process, ensuring it enables U.S. employers to fill specialty occupation roles with qualified foreign workers. Understanding these provisions is crucial for employers and petitioners to navigate the application process successfully and ensure compliance with U.S. immigration law. As these proposals move through the regulatory process, stakeholders should stay informed and prepared to adapt to the evolving requirements for H–1B visa petitions.

Conclusion

In conclusion, the proposed amendments to 8 CFR 214.2 by the Department of Homeland Security represent a concerted effort to enhance the integrity and effectiveness of the H–1B visa program. By introducing stringent requirements for contracts, explicitly prohibiting speculative employment, and ensuring that the Labor Condition Application accurately corresponds with the H–1B petition, these changes aim to safeguard the bona fide nature of job offers for specialty occupations.