DHS Proposes to Amend H-1B Program

On October 23, 2023, the U.S. Department of Homeland Security (DHS) issued a notice of proposed rulemaking (NPRM) to amend its H-1B regulations. The proposal also includes provisions that would change the H-1B cap registration and selection process.

If implemented, the NPRM would:

• Address H-1B cap registration abuse by changing the way USCIS selects registrations. Under the proposed rule, USCIS would select registration by unique beneficiary to help ensure that each beneficiary has the same chance of being selected.
• Allow automatic extensions of F-1 cap-gap status from the current October 1 to April 1 of the fiscal year for which H-1B status is requested.
• Clarify the definition and qualifying criteria for what constitutes an H-1B specialty occupation.
• Codify USCIS policy to give deference to prior petition approval where there is no material change to the underlying facts of the prior petition.
• Provide more flexibility for nonprofit and government research organizations to sponsor cap-exempt H-1B petitions.

The Details

In advancing the rule, DHS aims to improve efficiencies, increase program benefits and flexibility, and strengthen the integrity of the H-1B program.

Modernize and Create Efficiencies

The NPRM

• Revises the regulatory definition for an H-1B specialty occupation to codify that a range of degrees (fields of study) may qualify an individual for a specialty occupation, though there must be a direct relationship between the required degree field(s) and the position duties.
  • A general degree requirement (e.g., a degree in business administration or liberal arts degree) without specialized studies is insufficient to qualify for an H-1B.
  • A software developer position requiring a degree in any field of engineering would not generally satisfy the requirement that the position requires the application of a body of highly specialized knowledge and a degree in a specialty field.
• Clarifies that, for purposes of establishing that a position is a specialty occupation, the qualifying criterion – a bachelor’s degree is normally required for the position – does not mean that a bachelor’s degree is “always” required.
  • This reflects current USCIS practice, but the prior administration frequently took the position that “normally” meant “always,” issuing requests for evidence and denying petitions accordingly. This provision is intended to standardize adjudications.
• Clarifies that an amended or new petition must be filed when there is a material change to the conditions of employment, including following the filing of a new Labor Condition Application (LCA) due to a change in an H-1B worker’s place of employment. The amendment must be filed before the change takes place.
• Codifies and clarifies the policy of giving deference to prior petition approvals if there have been no material changes in the underlying facts of the prior petition.
  • This provision would apply to petitions for all nonimmigrant classifications filed on Form I-129, including petitions filed for E, L, O and TN nonimmigrants.
• Requires evidence of maintenance of status if the beneficiary is seeking an extension or amendment of stay.
  • This provision would apply to E–1, E–2, E–3, H–1B, H–1B1, H–2A, H–2B, H–3, L–1, O–1, O–2, P–1, P–2, P–3, Q–1, R–1, and TN nonimmigrants.
• Eliminates the itinerary requirement if services will be performed in more than one location.
  • The requirement to obtain corresponding LCAs for worksites is unchanged.
• Allows petitioners to amend validity periods when the requested validity period expires before adjudication is completed.

Increase Benefits and Flexibility

The NPRM

• Modernizes the definition of employers who are exempt from the annual statutory cap on H-1B visas to create more flexibility for nonprofit and governmental research organizations and beneficiaries who are not directly employed by a qualifying organization.
• Provides automatic extensions of F-1 cap-gap status from the current date of October 1 to April 1 of the fiscal year for which H-1B status is requested, to avoid disruptions in status, including OPT and STEM OPT employment.
• Offers start date flexibility for certain H-1B cap-subject petitions as long as the start date does not exceed six months beyond the petition filing date.

Increase Program Integrity

The NPRM

• Changes the cap registration process to select registrations based on a unique beneficiary identifier to reduce or remove the advantage of submitting multiple registrations for the same individual by different employers to increase changes of selection.
  • While a beneficiary still could have multiple, unrelated employers submit a registration on their behalf, the beneficiary would only be entered into any given lottery once, and if selected, each employer that submitted a registration for that beneficiary would be notified of selection and would be eligible to file a petition for the beneficiary.
• Bars related entities from submitting multiple registrations for the same beneficiary.
• Codifies USCIS’s ability to deny or revoke an approved H-1B petition where the underlying registration contained a false statement.
• Codifies USCIS authority to request contracts and work orders from a petitioner where appropriate, requires that the petitioner have an actual (non-speculative) position for the H-1B worker as of the requested start date on the petition, and codifies the existing requirement that a petitioner have a bona fide job offer as of the requested start date.
• Clarifies that beneficiary-owners may be eligible for H-1B status under defined conditions.
• Codifies USCIS authority to conduct site visits, including visits to third-party worksites and home worksites.
• Clarifies that if an H-1B worker is staffed to a third party, the requirements of the third party are most relevant to determining whether the position is a specialty occupation.

What’s Next?

The public may submit comments to the rule through December 22, 2023. Once DHS reviews and considers all comments, it intends to publish one or more final rules.  A final rule addressing cap registration and selection may be in place for next year’s cap registration process.

Gibney will closely monitor advancement of this rule and will provide updates as they become available.  For questions about the rule and the notice and comment period, please contact your designated Gibney representative or email….