Potential Changes Coming to the H-1B Program

On September 19, 2023, U.S. Citizenship and Immigration Services (USCIS) submitted proposed regulations for federal review entitled “Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program.” These proposed regulations, currently under review with the Office of Management and Budget (OMB), would amend governing rules regarding H-1B specialty occupation workers and F-1 students who are the beneficiaries of timely filed H-1B cap-subject petitions.

Quick Hits

• The Office of Management and Budget is currently reviewing proposed changes to H-1B requirements and the F-1 program.
• USCIS is proposing to amend the H-1B registration process in an attempt to reduce misuse and fraud.

The proposed regulations are expected to:

• update provisions “relating to [the] ‘employer-employee relationship’ and provide flexibility for start-up entrepreneurs”;
• “implement new requirements and guidelines for site visits including in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data”;
• “provide flexibility on the employment start date listed on the petition (in limited circumstances)”;
• “address ‘cap-gap’ issues”;
• “bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B [cap] registration system”; and
• “clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions.”

Next Steps

Specific details and language regarding the proposed rules will not be available until the proposal passes through OMB review and is released for publication in the Federal Register. USCIS will then accept public comments for feedback on the implications of the proposed changes. After the comment period has closed, USCIS will review the feedback and publish the final regulations. In the final regulations, an implementation timeline will also be provided.

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

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