On 10/20/23, the US Citizenship and Immigration Services and Department of Homeland issued a proposed rule to amend the H-1B regulations. It has been many years since the rules and regulations of the H-1B program have been revised – most recently there was the Immigration Act of 1990 and the American Competitiveness and then the Workforce Improvement Act of 1998. In the interim, H-1B petitions have been subject to adjudicators with sometimes shifting interpretations of these dated H-1B regulations and the various policy directives by the USCIS along the way, resulting in inconsistent adjudications that have been frustrating to U.S. employers, foreign national professionals, and immigration lawyers alike.
These recently proposed amendments to the H-1B regulations are significant and meaningful and are designed to put some consistency and certainty in the H-1B petition adjudication process, as well as to modernize the H-1B regulations to reflect the current business needs and environment. Many of the proposed changes are already in practice at USCIS but having them codified and made a part of the H-1B regulations rather than policy coming from some USCIS memo will give some permanence and weight to them. This will have the effect of tightening up adjudications and making the H-1B petition process more predictable.
It is important to note that these are proposed amendments, and there is an open public comment period through 12/22/23. So, there could be changes and tweaks made to the Final Rule. With that said, let’s first take a look at a summary of the changes to the regulations, and then take a bit of a deeper dive into the proposed rule.
In its discussion of the regulatory changes within the proposed rule, the DHS/USCIS categorizes the amendments into three headings — Modernization and Efficiencies; Benefits and Flexibilities; and Program Integrity. And with that framework in mind, in its press release, DHS summarized the amendments to the H-1B regulations as follows:
- Streamlining eligibility requirements – criteria for specialty occupation positions would be revised to reduce confusion between the public and adjudicators and to clarify that a position may allow a range of degrees, although there must be a direct relationship between the required degree field(s) and the duties of the position;
- Improving program efficiency – The proposed rule codifies that adjudicators generally should defer to a prior determination when no underlying facts have changed at time of a new filing;
- Providing greater benefits and flexibilities for employers and workers – certain exemptions to the H-1B cap would be expanded for certain nonprofit entities or governmental research organizations as well as beneficiaries who are not directly employed by a qualifying organization. DHS would also extend certain flexibilities for students on an F-1 visa when students are seeking to change their status to H-1B. Additionally, DHS would establish new H-1B eligibility requirements for rising entrepreneurs; and
- Strengthening integrity measures – in addition to changing the selection process, misuse and fraud in the H-1B registration process would be reduced by prohibiting related entities from submitting multiple registrations for the same beneficiary. The rule 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.
Pretty good stuff so far and may be enough for some of you – but going a little deeper into the proposed amendments to the H-1B regulations shines a light on some of the real, substantial enhancements to the visa category that will be of benefit to U.S. companies and the foreign national workforce.
Modernization and Efficiencies
- Revises regulatory definition and criteria for a “specialty occupation”.
- There must be a direct relationship between the required degree field(s) and the duties of the position; there may be more than one acceptable degree field for a specialty occupation; and a general degree is insufficient.
- Clarifies that “normally” does not mean “always” when determining whether the position is a “specialty occupation”.
- Clarifies that a position may allow a range of degrees, although there must be a direct relationship between the required degree(s) and the duties of the position.
- Clarifies when an amended or new petition must be filed due to a change in an H-1B worker’s place of employment to be consistent with current policy guidance.
- Adjudicators of H-1B petitions should generally defer to a prior determination involving the same parties and underlying facts.
- Require evidence of maintenance of status to be included with an H-1B petition where the foreign national beneficiary is seeking an extension or amendment of stay.
- Eliminate the itinerary requirement, which would allow US employer petitioners to amend requested validity periods where the validity expires before adjudication.
Benefits and Flexibilities
- Modernize the definition of employers who are exempt from the H-1B cap to create more flexibility for nonprofit and governmental research organizations and foreign national beneficiaries who are not directly employed by a qualifying organization.
- Change the definition of “nonprofit research organization” and “governmental research organization” by replacing “primarily engaged” and “primary mission” with “fundamental activity”.
- Allows a nonprofit entity or governmental research organization that conducts research as a fundamental activity but is not primarily engaged in research or where research is not a primary mission, to meet the definition of nonprofit research entity for H-1B cap purposes.
- A foreign national employee who is not directly employed by a qualifying organization, but indirectly provides essential work to a qualifying organization may qualify for H-1B cap exemption.
- Automatically extend the duration of F-1 status and any post-completion OPT employment authorization to April 1 of the fiscal year for which the H-1B petition was filed (or the validity start date of the approved petition, whichever is earlier), rather than October 1, the first day of the fiscal year for which the H-1B petition was filed (keeping in mind that the government’s fiscal year runs from October 1 to September 30.
- This extension of the “cap-gap” relief will prevent the disruptions in employment authorization that some F-1 nonimmigrants and their employers have experienced over the past several years.
- April 1 was picked as DHS believes that USCIS can adjudicate 99% of the cap-subject H-1B petitions by that date each fiscal year.
- Permit the filing of H-1B cap-subject petitions with requested start dates that are after October 1 of the relevant fiscal year.
- Requested start date does not exceed six months beyond the filing date of the H-1B petition.
- An H-1B petition may not be filed earlier than six months before the date of actual need.
Program Integrity
- The H-1B cap lottery registration changes from a purely registration-based selection process to one based on registrations by each unique beneficiary. This is designed to reduce the potential for gaming the process to increase chances for selection and to help ensure that each beneficiary would have the same chance of being selected, regardless of how many registrations are submitted on their behalf.
- Each unique individual who has a registration submitted on their behalf would be entered into the selection process once, regardless of the number of registrations filed on their behalf.
- Related entities are prohibited from submitting multiple registrations for the same beneficiary.
- Codify USCIS’s ability to deny H-1B petitions or revoke an approved H-1B petition where the underlying registration where the statement of facts (including the attestations) was not true and correct, inaccurate, fraudulent, or misrepresented a material fact.
- Codifies USCIS’s authority to request contracts (both the Master Services Agreement and Statement of Work) and to require the US employer petitioner to establish that it has an actual, non-speculative position available for the beneficiary as of the requested start date.
- Clarifies that H-1B foreign national beneficiaries who also have an ownership interest in the petitioning U.S. employer company may be eligible for H-1B status, even if the beneficiary owns a controlling interest in the petitioning entity.
- This changed is geared to attract entrepreneurs, innovators and start-up entities to the U.S. recognizing the benefit from the creation of jobs, new industries, and new opportunities.
- Sets “reasonable conditions” to ensure program integrity where an H-1B beneficiary owns a controlling interest in the petitioning entity – more than 50% ownership or majority voting rights.
- H-1B beneficiary may perform duties are directly related to owning and directing the petitioner’s business (including non-specialty occupation duties) but must spend more than 50% of his/her time performing the specialty occupation duties authorized in the approved H-1B petition.
- The validity period for the initial H-1B petition and first extension would be limited to 18 months each, as a safeguard against fraudulent petitions. A subsequent extension would not be limited and may be approved for up to 3 years.
- Codifies USCIS’s authority to conduct site visits and clarifies that refusal to comply with site visits may result in denial of revocation of the H-1B petition.
- Clarifies that if an H-1B worker is assigned to a third-party site, it is the requirements of that third-party, and not the petitioner, that are most relevant when determining whether the position is a specialty occupation.
