Significant modifications to the H-1B visa program are expected to be implemented by the Department of Homeland Security. The agency issued a Notice of Proposed Rulemaking (NPR) 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 NPR was issued on October 23 and has a 60-day notice and comment period. The final rule is expected to be published in December 2023 or January 2024. During the 60-day comment period, interested parties may submit comments to the proposed rules.

Some of the most substantial provisions which will affect U.S. companies filing for H-1B visa designates include:

• Revising and modernizing the definition and criteria for a ‘specialty occupation”. The requirements will modify the definition to require a direct correlation between the H-1B position duties and the H-1B foreign worker’s degree/field of major study.
• Clarifying educational criteria for the specialty occupation, conceding that while an occupation might permit a range of degrees, such as electrical engineering or electronics engineering for an electrical engineer, there must be a direct relationship between the field of study and the job duties to be performed by the H-1B worker. General degrees, such as ‘business administration’ alone, may not alone qualify one for the H-1B visa category, and more specialized majors would be preferable to qualify for the H-1B visa category.
• Eliminating the requirement that the petitioner provides an itinerary of the H-1B workers’ dates and location of assignment, with the recognition that the labor condition itself covers work locations and secondary placement information.
• Allowing USCIS officers the discretion to accept a new labor condition application with fresh and new petition validity dates in cases where the H-1B validity period may have expired or will expire due to delays in processing Requests for Evidence (additional information) or the administrative review process for denied petitions.
• Expanding the definition of H-1B cap exempt employment to allow foreign workers who furnish at least one half of their hours of work to an institution of higher education, nonprofit entity related to or affiliated with an institution of higher education, or to a nonprofit or governmental research organization to also work for an H-1B cap-subject employer.
• Extending the H-1B ‘cap-gap’ period from October 1 to April 1 of the cap’s fiscal year would allow students whose OPT or STEM OPT might expire prior to the H-1B petition start date the continued ability to work.
• Introducing regulations relating to supporting H-1B workers who are entrepreneurs or who have a controlling interest or majority voting rights in a business, and allowing them to perform duties in support of managing the business endeavor, in addition to performing work in a ‘specialty occupation’.
• Requiring employers who might place workers to third-party work sites to prove that the third-party company requires the application of at least a bachelor’s degree and attainment of a high level of theoretical and practical application of specialized knowledge to fulfill H-1B visa requirements.
• Updating the definition of ‘employer’ for purposes of U.S. immigration to include a person, firm, corporation, contractor, or other association having an IRS Tax identification number (FEIN) having a legal presence in the United States and amenable to service or process to be sued in the United States.
• Introducing regulations to address the fraud and abuse in the H-1B pre-registration program. USCIS will propose to shift the selection process to a beneficiary-centric process, wherein each beneficiary will only be considered one time in the selection process, regardless of how many employers might have filed pre-registration requests on their behalf. This will avoid the large occurrence of multiple filings by many employers for the same beneficiary which amounted to more than 36.5% of all pre-registration submissions for the ‘lottery’ in the March 2023 time frame.

Stateside H-1B Visa Renewal – Back to the Future
On October 17, 2023, the U.S. Department of State (DOS) sent a Federal Register Notice to the Office of Information and Regulatory Affairs notifying the public that the DOS would resume issuing visa stamps on passports without requiring that the visa holder renew their visa at a U.S. consular post outside the United States. The notice also furnished updated information about its upcoming pilot program, which it intended to initially limit to H-1B visa holders.

Terminated in the aftermath of 9/11 in 2004, the Stateside visa renewal program allowed qualified visa applicants the ability to renew U.S. visas without travel abroad, experience long wait times for visa appointments, and require reentry to the United States after a lengthy visit abroad. This requirement to travel abroad merely to renew visa stamps to facilitate international travel was burdensome both to the foreign national and to the U.S. business employing the individual. Lengthy stays abroad resulted and with the advent of COVID-19 in 2020, there was a strong effort to resurrect the stateside visa renewal program.

The new pilot program proposes that it will:

• Begin in early 2024
• Be limited to H-1B principals only (no dependent visa holders, which would include spouse/children under 21 years of age)
• Be limited to nationals of countries that are not subject to reciprocity fees – this includes most European countries and India. To verify whether a country has a visa reciprocity fee, once can use this DOS link
• Be voluntary and limited to 20,000 visa applicants.

In the past, the program was available to E visa applicants, O visa applicants and L visa applicants. It did not apply to F-1 students of J-1 visa holders.

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