On October 23, 2023, U.S. Citizenship and Immigration Service (USCIS) issued a notice of proposed rulemaking to amend the H-1B regulations. These proposed rules are seen as a significant step to modernize the H-1B requirements and address issues of fraud that occurred in the previous H-1B lottery cycle. Comments for these proposed rules will be accepted through December 22, 2023.
Modernization and Efficiencies
In an effort to align with a skills-first culture, USCIS seeks to revise the regulatory definition and criteria for a “specialty occupation,” to clarify that “normally” does not mean “always” within the criteria for a specialty occupation and to clarify that a position may allow for a range of degrees—although there must be a direct link between the required degree(s) and the U.S. position.
We expect this change will reduce the number of “specialty occupation” Requests for Evidence issued on H-1B petitions for positions that have not historically required a degree in one or two specific fields of study, but which do require a bachelor’s degree level of study and knowledge in particular areas, such as business analyst and other analyst positions.
Furthermore, USCIS seeks to codify and clarify its deference policy and clarify when an amended or new petition must be filed. Historically, USCIS has not always provided deference to previously approved H-1B petitions in adjudicating H-1B extension petitions where no change in employment has occurred and the petition remains the exact same as the previous petition. Employers have received Requests for Evidence from USCIS on the H-1B extension petition pertaining to issues not raised in the previously approved H-1B petition, creating confusion. The proposal would codify a deference policy to address this issue.
Finally, for H-1B employers who place employees at multiple worksites, USCIS has proposed to eliminate the itinerary requirement. This requirement often posed issues for employers, such as IT consulting companies and engineering firms, where exact itineraries could not be determined for the entire requested H-1B employment period.
Benefits and Flexibilities
USCIS seeks to provide more flexibility in the definition of employer for nonprofit research organizations and governmental research organizations seeking to be exempt from the annual statutory limit on H-1B visas. USCIS proposes to change the definition of “nonprofit research organization” and “governmental research organization” by replacing “primary engaged” and “primary mission” with “fundamental activity” to permit such organizations that conduct research as a fundamental activity but are not primarily engaged in research, or where research is not a primary mission, to meet the definition of an employer exempt from the annual statutory limit on H-1B visas.
Furthermore, USCIS seeks to automatically extend the duration of F-1 status and any employment authorization pursuant to OPT until April 1 of the relevant fiscal year, rather than October 1 of the same year. This means that if a student on an F-1 visa has OPT work authorization that expires in June 2024 and an employer is able to file a cap-subject H-1B petition on their behalf, the student’s OPT work authorization will be extended until April 1, 2025, instead of October 1, 2024. For employers, this would potentially eliminate the need to pay the costly premium processing fees for H-1B petitions and reduce the likelihood that the student’s OPT work authorization expires before the student’s H-1B petition is approved.
Program Integrity
USCIS seeks to address previous abuse of the H-1B registration system, specifically submission of multiple registrations for a single applicant, by selecting registrations by unique applicant to ensure each applicant has the same chance of being selected. Furthermore, USCIS seeks to improve the integrity of the system by codifying its authority to determine the U.S. position is real and the employer be amenable to service of process in the U.S. In addition, USCIS proposes to clarify that beneficiary-owners may be eligible for H-1B status and to codify its authority to conduct site visits.
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