On October 23, 2023, the Department of Homeland Security (“DHS”) published a Notice of Proposed Rulemaking in the Federal Register to “modernize the H-1B specialty occupation worker program.” There is a sixty-day notice and comment period for the proposed rule, and the public is invited to submit comments on the Federal Register website.
The proposed rule sets out to impose changes to the H-1B program, as well as to codify a number of existing rules. We must point out that the proposed rule is quite lengthy; therefore, our summary does not cover all of the proposed changes. We will outline a few of the most notable proposed changes below which we feel may be of most interest to our community.
Changes to the existing H-1B Lottery Process: Notably, the proposed rule would change how USCIS conducts the H-1B registration lottery selection process in hopes of reducing the possibility of misuse and fraud. The new proposal calls for each unique individual who has a registration submitted on their behalf to be entered into the selection process once, regardless of the number of registrations submitted on their behalf. USCIS believes this would improve the chances that a legitimate registration would be selected in the lottery “by significantly reducing or eliminating the advantage of submitting multiple registrations for the same beneficiary solely to increase the chances of selection.”
Redefining “Specialty Occupation”: The proposed rule would clarify and update the definition of a "specialty occupation" and the criteria used to identify specialty occupation positions. This is a very controversial measure in that the rule proposes a narrowing of the degrees that would allow a position to qualify as an H-1B specialty. Under the proposed rule, to qualify as a specialty occupation, the position must require “A U.S. baccalaureate or higher degree in a directly related specific specialty or its equivalent” for entering the occupation. This is in contrary to the Immigration and Nationality Act (“INA) which does not state that a degree must be in a “directly related” specific specialty. Furthermore, the proposed ruled is peppered with restrictive language that states “the required specialized studies must be directly related to the position. A position is not a specialty occupation if attainment of a general degree, such as business administration or liberal arts, without further specialization, is sufficient to qualify for the position. A position may allow a range of degrees or apply multiple bodies of highly specialized knowledge, provided that each of those qualifying degree fields or each body of highly specialized knowledge is directly related to the position.”
Extension of Cap-Gap for F-1 Students: The proposed rule would extend the period of time that F-1 students who have an H-1B registration selected in the lottery can remain in the United States on cap-gap benefits, which provide an “automatic extension of F-1 OPT work authorization if an H-1B cap petition is filed on behalf of an individual who has a valid, unexpired F-1 OPT on the day the petition is filed to USCIS.” The proposed rule provides automatic cap-gap protection until April 1 of the following calendar year, as opposed to October 1, giving students an additional six months of validity in the event of processing delays.
Expansion of H-1B Quota Exemptions: The proposed rule seeks to revise the definition of an exempt nonprofit research organization and governmental research organization by replacing certain key terms in the definition. This proposed change will allow a nonprofit entity or governmental research organization to be exempt from the H-1B quota if they conduct research as a “fundamental activity,” even if it is not the organization’s primary purpose.
H-1B Petitions for Entrepreneurs: Under the proposed rule, DHS would establish new H-1B eligibility requirements for “rising entrepreneurs” whereby “the beneficiary may perform duties that are directly related to owning and directing the petitioner’s business as long as the beneficiary will perform specialty occupation duties authorized under the petition a majority of the time.”
H-1B Petition Amendments and Location Changes: The proposed rule would codify USCIS’ requirement that employers must amend a nonimmigrant petition as a result of material changes in an H-1B worker’s place of employment, additionally the rule would require the amendment to be filed before the change takes place. The proposal also identifies when a change in work location would not require an amendment, which includes changes within the area of intended employment listed in the LCA. Additionally, the proposed rule outlines specific durations of short-term placements that, assuming there are no other material changes, would not require an amended or new petition to be filed.
Codification of USCIS Site Visit Authority: The rule being proposed would also codify USCIS' authority to conduct site visits and clarify that refusal to comply with site visits may result in denial or revocation of the petition.
Codification of Deference Policy: The proposed rule codifies the long-standing guidance issued in 2004 which advises that adjudicators should defer to a prior determination when there have not been any changes to underlying facts at the time of a new filing.
The proposed rule will remain open for public comment until December 22, 2023. Once the public period comes to an end, DHS will review the comments and amend the proposed rule before a final rule is issued. We will keep tracking the proposed rule and alert you to any updates as they are announced.
UPDATE January 30, 2024: The White House Office of Management and Budget (“OBM”) concluded its review of a final H-1B modernization rule on January 26, 2024. This is the final point in the process to finalize the rule to modernize the H-1B program. We await the publication of the rule in anticipation of the approaching H-1B cap registration period for fiscal year 2025.