The U.S. Department of Homeland Security (DHS), through U.S. Citizenship and Immigration Services (USCIS), announced on October 23, 2023, its plan to amend and modernize the H-1B specialty occupation worker program as an effort to “attract global talent, reduce undue burdens on employers, and prevent fraud and abuse in the immigration system” under the Biden administration (USCIS). The Notice of Proposed Rulemaking (NPRM) issued by DHS details changes to “streamline eligibility requirements, improve program efficiency, provide greater benefits and flexibility for employers and workers, and strengthen integrity measures.”
Significant provisions proposed to modernize the H-1B program include:
Beneficiary-Centered Registrations: Under the current H-1B petition process, the more registrations submitted on behalf of an applicant, the better chance they have at getting selected in the lottery. Under the proposed rule, employers are barred from submitting multiple registrations on behalf of an applicant unless they can provide additional information. This change provides all applicants with an equal opportunity to be selected regardless of how many registrations were submitted on their behalf.
Clarification of Definition and Criteria for “Specialty Occupation”: The INA currently requires proof of at least a bachelor’s degree in a specific specialty or its foreign equivalent. DHS’s proposal includes showing a direct relationship between the degree and the duties of the job position. Although this allows for a range of degrees to qualify under the program, this change may make it harder for some people to qualify. DHS ‘s proposal suggests that general degrees, such as those in business administration, will not be sufficient to qualify for an H-1B visa unless further specialization is provided. The petitioner will have the burden of showing that each qualifying degree is “directly related” to the job position.
“Employer-Employee Relationship” Requirement Eliminated: DHS proposes the elimination of the employer-employee relationship element as required by the definition of “United States employer.” Replacing this requirement with the requirement of a bona fide job offer provides applicants with greater flexibility in proving eligibility for the visa.
Codification of Deference Policy: The proposed rule generally instructs adjudicating officers to defer to prior determinations involving the same parties and underlying facts as long as such facts have remained the same. This change seeks to promote consistency and efficiency for USCIS and the involved stakeholders, which could reduce the number of I-129-related RFEs issued.
Expansion of Qualifications for H-1B Cap Quota Exemption: DHS proposes to expand the requirements to qualify for H-1B exemption, allowing eligibility for beneficiaries who provide essential work for an employer but are not involved in furthering an organization’s essential purpose.
Expansion of Sponsorship Opportunities for Research Organizations: DHS proposes providing nonprofit entities and governmental organizations with more flexibility to sponsor beneficiaries despite not being primarily engaged in research. As long as the entities and organizations conduct research as a fundamental activity, they may qualify to participate in the H-1B program.
Six-month Extension of Cap-Gap Protection Period: The proposed rule extends the authorized period of stay and OPT and STEM OPT work authorization for F-1 students who have timely filed a cap-subject H-1B petition. The October 1 end date is extended to April 1 of the relevant fiscal year. This extension protects beneficiaries whose petitions may have yet to be adjudicated by October 1 due to processing delays, for example.
Increased Scope of Inspection: The proposed rule authorizes USCIS to inspect various locations related to the H-1B program, such as the petitioner’s headquarters, satellite locations, the beneficiary’s home, and third-party worksites. Noncompliance by a petitioner, beneficiary, or third-party end client in an inspection could result in a denial or revocation of an H-1B visa. This proposal is drastically different from the current rule, which states site visits are voluntary.
Clarification of Bona-fide Job Offer: The proposed rule clarifies that bona fide job offers for H-1B beneficiaries may include telework, remote work, and other off-site work within the U.S.
Entrepreneurs and Beneficiary-Owned Businesses as Sponsors: The proposed rule clarifies that beneficiary-owned businesses are eligible and encouraged to participate in the H-1B program as employers. This expanded definition reduces barriers to entry into the program for beneficiaries who have ownership in a petitioning company.
Clarification on when to Amend or File New H-1B Petition: DHS clarifies an amended or new H-1B petition must be filed when a change in a beneficiary’s location of employment occurs. An amended or new file is not required if the change of location is within the same Metropolitan Statistical Area (MSA) as designated on the certified labor certification application.
Eliminating the Itinerary Requirement: The proposed rule eliminates the itinerary requirement for H1-B petitioners who file for beneficiaries who work in more than one location. This change reduces the burden placed on petitioners during the application process.
Conclusion
The new H-1B proposal, if implemented, will impact the area of immigration in both good and bad ways. While combatting fraud and improving efficiency are noteworthy, it is especially important to recognize that allowing self-sponsorships by entrepreneurs with ownership in a petitioning company will likely increase the volume of H-1B petitions submitted.
To read the full press release issued by DHS, click here:
This proposed rule has no immediate effect on the H-1B program as the final rule has yet to be announced. Public comments for this proposed rule will be accepted through 12/22/2023. To submit comments to the proposed rule, click here:
If you have any questions regarding the above, please reach out to cprescott@patellegal.com or jtrevino@patellegal.com.