Another Proposal to Modernize the H-1B Program? (October 2023)
On October 23, 2023, the United States Citizenship and Immigration Services (USCIS) introduced a new proposed rule aimed at modernizing the H-1B program. The H-1B visa for professional workers is the most common work visa for foreign nationals who qualify for specialty occupations offered to them by U.S. employers. This proposed rule is designed to enhance the integrity of the H-1B cap registration system, redefine the concept of an H-1B specialty occupation, strengthen protections for F-1 students in the cap-gap period awaiting a change of status to H-1B, and provide clarity regarding nonimmigrant visa petition amendments. Below are some of the key provisions of the proposal.
Enhanced Integrity and Prevention of Misuse of H-1B Cap Registration System
The proposed rule includes measures to prevent misuse and increase transparency within the H-1B cap registration system. Specifically, the proposal aims to select registrations by unique beneficiary to ensure that each unique beneficiary has the same odds of selection even when multiple have been submitted on their behalf. The proposal will also codify the USCIS’ authority to deny or revoke an H-1B petition if the underlying registration contained a false attestation or was otherwise invalid. This is a significant step to ensure fairness in the allocation of H-1B visas.
Redefining the H-1B Specialty Occupation
The proposal seeks to revise the definition of an H-1B specialty occupation. This revision aims to make it more specific and clearer, providing that a “specialty occupation: is an occupation that “normally” requires a bachelor’s degree, which doesn’t mean that it must always require a bachelor’s degree. Importantly, the proposal acknowledges that an H-1B specialty occupation is one where the employer requires degrees in a broad range of specialty fields, so long as those fields are related to the position. Lastly, if an H-1B employer is placed at a third-party worksite, it would be the third party’s requirements for the position (rather than the employer’s) that are determinative.
H-1B eligibility for business owners
The proposed rule confirms that H-1B beneficiaries who are owners of a petitioning entity may still be eligible for H-1B, subject ot some conditions. Also, the rule would codify the USCIS’ long-standing policy of requesting contracts and other evidence that a bona fide job offer exists for each beneficiary, but would no longer require an itinerary for each H-1B petition.
Strengthening Cap-Gap Protections for F-1 Students
The proposal introduces enhancements to cap-gap protections for F-1 students who are in the process of changing their status to H-1B. This change would provide an additional six months of status and employment authorization to help qualifying F-1 status holders avoid lapses in status and work authorization while awaiting their H-1B change of status approval.
Clarity on Nonimmigrant Visa Petition Amendments:
The proposed rule offers clarity on when a nonimmigrant visa petition must be amended and when such amendments are not required. This clarity can help streamline the process and avoid unnecessary amendments.
FDNS Site Visits
The rule would codify the USCIS’s long established Fraud Detection and National Security (FDNS) unit’s site visit program. It would also clarify that an employer’s refusal to comply with such a side visit can result in the denial or revocation of an H-1B petition.
As a reminder, this is still only a proposal and USCIS will accept public comments for a 60-day period after its October 23, 2023 publication. The proposed modernization of the H-1B program represents a significant step in ensuring the integrity and efficiency of the program. USCIS has indicated that some provisions may be finalized in time for the FY 2025 H-1B cap season, which begins in early 2024. Additionally, the USCIS may choose to implement these provisions in stages through one or more final rules.
