October 27, 2023
UNITED STATES | USCIS proposes modernization and new rules for the H-1B program
Impact [High]
Summary
U.S. Citizenship and Immigration Services (USCIS), published a Notice of Proposed Rulemaking (NPRM) that would modernize the H-1B specialty occupation worker program by streamlining eligibility requirements, improving program efficiency, providing greater benefits and flexibilities for employers and workers, and strengthening integrity measures. The proposed rule was published on Monday, October 23. USCIS will accept public comments for 60 days. The rule will not go into effect until sometime after the end of the public comment period. USCIS says it may implement the provisions in stages through one or more final rules so that some of the provisions may take effect for the FY2025 H-1B cap process.
Specific highlights of the proposed rule include:
- Enhanced integrity and measures to prevent misuse of the H-1B cap registration system;
- Streamline and revise the requirements for the H-1B program;
- Improve program efficiency by codifying that adjudications should generally defer to prior determinations when no underlying facts have changed at the time of a new filing;
- Strengthen and extend the cap-gap protections for F-1 students awaiting a change of status to H-1B until April 1, rather than October 1;
- Clarify when a nonimmigrant visa petition must be amended and when amendments are not required; and
- Codify USCIS’s authority to conduct site visits and deny or revoke petitions in situations where employers refuse to comply.
The detail
Below is a summary of the provisions of the proposed new rules and their impact on the H-1B program.
- H-1B cap registration. The agency is proposing to amend its rules to:
- Make selections based on the unique beneficiary rather than the number of registrations. Under the current selection process, an individual may make multiple registrations based on multiple job offers. This gives certain candidates a greater chance of being selected than an individual with one registration. Under the new proposed rule, each individual would be entered into the selection process once, regardless of how many employers entered a registration on their behalf. This would reduce the potential for gaming the registration system and ensure that each beneficiary would have the same chance of being selected no matter how many registrations are submitted on their behalf; and
- Clarify that related entities are prohibited from submitting multiple registrations for the same beneficiary.
- Qualifying H-1B occupations. USCIS is seeking to revise the definition of an H-1B specialty occupation. Specifically the proposed rules would:
- Clarify that a position may qualify as an H-1B specialty occupation even if the employer accepts degrees in a broad range of specialty fields, provided the fields are related to the duties of the position; and
- Implement new regulation for off-site placements, which would provide that when a beneficiary is staffed to a third party, the requirements of that third party, and not the petitioner, are most relevant when determining whether the position is a qualifying specialty occupation for the purposes of meeting the H-1B criteria.
- H-1B location changes and petition amendments. The rule would codify the agency’s current requirement that an employer must amend a nonimmigrant petition due to material changes in an H-1B worker’s place of employment, and would require the amendment to be filed before the change takes place. The proposal also clarifies when a location change would not require an amendment, including location changes within the area of intended employment listed in the DOL labor condition application (LCA) supporting the existing petition.
- Deference to prior nonimmigrant adjudications. USCIS seeks to codify its current policy of deference to its prior adjudications where there has been no material change in the facts underlying the case. This change would apply to all employment-based nonimmigrant classifications that use Form I-129.
- Greater F-1 cap-gap protections. The proposed rule would provide automatic extension of F-1 status and any employment authorization for an additional 6 months (till April 1 of the following year instead of October 1) for F-1 students who are beneficiaries of timely filed petitions to change status to H-1B.
- Codification of the site visit program. The rule would codify USCIS’s authority to conduct site visits and clarify that refusal to comply with a site visit can result in the denial or revocation of a petition.
What this means
USCIS is proposing new rules to modernize the H-1B program but they will not take effect until they clear the federal review process, which typically takes several months. Currently, USCIS is accepting public comments until December 22, 2023. After the 60-day public comment period, considering the received comments, USCIS will finalize the rule’s provisions through one or more final rules. The agency has indicated that H-1B cap anti-fraud provisions are a priority, so those provisions may be among the first to be finalized to come into effect for the FY2025 H-1B cap process. If the proposed rule is implemented, it would curtail fraud in the H-1B cap lottery process and increase an H-1B candidate’s opportunity to be selected under the lottery. The proposed rule should also streamline USCIS processes and ultimately reduce the backlogs in adjudications.
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