DHS Issues Proposed Rule to Modernize H-1B Program

Quick Hits

• DHS’s new NPRM would amend current regulations regarding H-1B visas to revise the regulatory definition of “specialty occupation,” expand eligibility for H-1B cap-exempt petitions, codify its deference policy, and clarify requirements for the H-1B petition filing.
• The NPRM proposes extending cap-gap extension until April 1 of the fiscal year (FY) and allowing employers to request a start date on or after October 1 for cap-subject H-1B petitions.
• The NPRM proposes to select registrants by unique beneficiary rather than registration under the H-1B lottery and eliminate the ability for related entities to submit multiple registrations on behalf of the same beneficiary
• The NPRM proposes several measures to improve program integrity such as ensuring there is a bona fide job offer for a specialty occupation role, compliance with site visits, and third-party placement.
• DHS will accept public comments until December 22, 2023.

The goal of DHS’s proposed regulations is to modernize and improve the efficiency of the H-1B program, add benefits and flexibilities for petitioners and beneficiaries, and improve integrity measures. Below is a summary of the key provisions of the proposed rule.

Modernization and Efficiencies

Specialty Occupation

The current regulations define a “specialty occupation” as an occupation that “requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor” and which a Bachelor’s degree or higher (or equivalent) in a specific specialty is normally the minimum requirement. The NPRM seeks to revise the regulatory definition and standards of specialty occupation to codify existing U.S. Citizenship and Immigration Services (USCIS) practice. Specifically, the NPRM proposes to codify the following requirements to the definition of the type of position that would qualify as a specialty occupation:

• The required degree fields must be directly related to the position’s duties.
• Attainment of general degree fields such as Business Administration or Liberal Arts without additional specialization is not sufficient.
• The position may require multiple degree fields provided that each of the qualifying degree fields are directly related to the position.

The NPRM seeks to define the term “normally” as “conforming to a type, standard, or regular pattern” and the petitioner does not have to establish that a Bachelor’s degree (or its equivalent) in a specific specialty is always a minimum requirement.

Amended Petitions

To codify current practice, the NPRM confirms that any change in worksite that requires a new Labor Condition Application (LCA) requires the petitioner to file an amended petition before the H-1B worker can work at the new worksite. Further, the NPRM clarifies that an amended petition is not required if the beneficiary is going to a location to participate in employee development activities, spend “little time at any one location,” or perform a “peripatetic job.”

Deference

Consistent with current guidance in the USCIS Policy Manual, the NPRM confirms that when the request involves the same parties and facts, USCIS officers should defer to a prior determination on any Form I-129 petitions. The Policy Manual does not require USCIS to give deference to a prior approval if there was a material error in the prior approval; a material change in circumstances or eligibility; or new material information that adversely impacts eligibility.

Evidence of Maintenance of Status

The NPRM provides that an applicant or petitioner seeking an amendment or extension of stay is required to submit evidence that the applicant or beneficiary maintained the prior nonimmigrant status before the extension was filed and provides examples of acceptable evidence.

Elimination of H-1B Itinerary Requirement

The NPRM seeks to eliminate the itinerary requirements for H-1B petitions.

Validity Expirations Before Adjudication

The NPRM proposes that if USCIS officers adjudicate an H-1B petition, and it is otherwise approvable after the initially requested validity period end-date, USCIS may issue a Request for Evidence (RFE) to allow petitioners to update the dates of intended employment and submit a corresponding LCA even if the LCA was certified after the H-1B petition was filed.

Benefits and Flexibilities

H-1B Cap Exemptions

The NPRM proposes to simplify and provide additional flexibility in eligibility for cap-exempt H-1B petitions. Specifically, the NPRM proposes to clarify that H-1B workers may be cap-exempt when they are not directly employed by a qualifying organization if at least half of the H-1B worker’s time is spent working at a qualifying organization (either remotely or on site). Further, the NPRM proposes to clarify that H-1B workers are eligible for a cap-exempt H-1B petition if their work directly contributes to, but not necessarily predominantly furthers, the qualifying organization’s purpose, mission, objective, or function.

Finally, the NPRM proposes to revise the definitions of “nonprofit research organization” and “governmental research organization” to replace “primarily engaged in” and “primary mission” with “a fundamental activity of.” This change is intended to clarify that nonprofit and governmental research organizations may qualify for the cap exemption even if they are engaged in more than one fundamental activity not related to a qualifying research activity.

Cap-Gap Extension

Due to adjudication delays, the NPRM proposes to provide an automatic extension of stay and post-completion optional practical training (OPT) until April 1 of the relevant fiscal year (FY) in which the H-1B petition is requested or until the validity start date of the approved H-1B petition, whichever is earlier.

Start Date Flexibility for H-1B Cap-Subject Petitions

The NPRM proposes to allow petitioners to request a petition start date of October 1 or later on H-1B cap-subject petitions, as long as the requested start date does not exceed 6 months beyond the petitions’ filing date.

Program Integrity

H-1B Registration

The NPRM proposes that USCIS select registrations based on each beneficiary. Each beneficiary would be entered into the lottery once, regardless of the number of registrants that submit a registration on his or her behalf. If USCIS selects the beneficiary’s registration, each registrant that submitted a registration on the beneficiary’s behalf would be notified of the selection and be eligible to file the petition on the beneficiary’s behalf.

The NPRM further expands the bar on filing of multiple H-1B cap-subject petitions for the same beneficiary by related entities to also include a bar on filing multiple H-1B registrations for the same beneficiary by related entities.

Bona Fide Job Offer for a Specialty Occupation Position

The NPRM seeks to further support USCIS’s authority to (1) request contracts, work orders, or similar evidence to support availability of a beneficiary’s work and the minimum educational requirements to perform the beneficiary’s duties; and (2) review and determine whether the certified LCA properly supports and corresponds with the H-1B petition.

The NPRM also revises the definition of a “U.S. employer” that USCIS uses to determine whether an employer is eligible as an H-1B petitioner. The new definition removes reference to an employer-employee relationship and includes a requirement that the petitioner have extended a bona fide job offer to the H-1B beneficiary to work in the United States. The new definition also requires that the petitioner have a legal presence in the United States and be amenable to service of process in the United States.

Site Visits

The NPRM seeks to codify USCIS’s authority to conduct site visits. It also seeks to codify the requirement that an H-1B petitioner or any third-party contractor allow access to all sites where labor will be performed to determine compliance with H-1B requirements. Further, the NPRM clarifies that if an employer or third party refuses or fails to fully cooperate with an inspection, USCIS may deny or revoke the relevant beneficiaries’ H-1B visas.

Third-Party Placement

The NPRM specifies that if the H-1B worker is staffed to a third party, USCIS will look at the third party’s requirements for the beneficiary’s position rather than the petitioner’s requirements.

Next Steps

After the 60-day comment period ends, DHS may finalize the proposed provisions through one or more final rules. Specifically, DHS has already begun planning the development work in the H-1B electronic registration tool for the new selection process based on the unique beneficiary rather than registration. DHS may seek to finalize the provisions related to the beneficiary-centric registration selection process before other provisions and in time for the FY 2025 cap season.

For more information on DHS’s proposed rule to modernize the H-1B process, please join us for our upcoming webinar, “Proposed Rule to Modernize H-1B Requirements and Revamp the H-1B Cap Registration Process,” on Thursday, November 2, 2023, from 2:00 p.m. to 3:00 p.m. (EDT) / 11:00 a.m. to noon (PDT). The speakers, Brian D. Bumgardner and Marissa E. Cwik, will review the proposal and prepare employers for the next steps in the regulatory process. Register here.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will provide updates on the Immigration blog as additional information becomes available.

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