Categories News & Updates USCIS

Proposed H-1B Change Would Regulate Duplicate Filings

DHS’s proposed rule on revising the H-1B regulations was published on October 23rd, 2023. This is not the final rule and is open for public comment until December 22nd, 2023.

The proposed rule entails 3 areas of focus:-

  • First, amend the definition of specialty occupation for purposes of a position qualifying as an H-1B position;
  • Second, provide flexibilities to F-1 students and broaden the definition of cap exempt organizations; and
  • Third, address H-1B cap registration abuse by changing the way USCIS selects registrations.




H-1B Specialty Occupation

  1. A position will not qualify for H-1B if it solely requires a general degree, such as business administration, or liberal arts without further specialization. Similarly, the position will not qualify as specialty occupation if it requires a general degree without further specialization. For example, if the role requirement is any engineering degree instead of a specialization such as Electrical Engineering.
  2. A petitioner may list multiple disparate fields of study as the minimum entry requirement for a position, so long as they can establish how each of those different fields of study are directly related to the job duties. Clarify that “normally” does not mean “always” within the criteria for a specialty occupation.
  3. Codify the existing requirement to file an H-1B amendment prior to any material change taking effect. For instance, if the beneficiary is moving to a location outside the MSA, an amendment must be filed prior to the move.
  4. For off-site placements where a beneficiary is staffed to a third party, the requirements of that third party, and not the petitioner, are most relevant when determining whether the position is a qualifying specialty occupation.
  5. Eliminates itinerary requirement for H-1B petitions.
  6. Update regulations to expressly require that evidence of maintenance of status must be included with the petition if a beneficiary is seeking an extension or amendment of stay.
  7. Codify the existing deference policy to cover all nonimmigrants using form I-129, stating that if there has been no material change in the underlying facts, adjudicators generally should defer to a prior determination involving the same parties and underlying facts.
  8. H-1B beneficiaries who are owners of a petitioning entity may be eligible for H-1B status, subject to some conditions where the beneficiary owns a controlling interest in the petitioner. For a petitioner that is more than 50% owned by the H1B worker, the beneficiary would be permitted to perform duties directly related to owning and directing the business – including duties that are non-specialty occupation duties – so long as more than half of the individual’s time will be spent performing specialty occupation duties. Such petitions will be limited to an initial validity period of 18 months, and the first extension will be limited to another 18 months. Subsequent extensions would be permissible in up to 3-year increments.
  9. Allow H1B petitions to be approved or have their requested validity period dates extended if USCIS adjudicates and deems the petition approvable after the initially requested validity period end-date, or the period for which eligibility has been established, has passed.


F-1 & H-1B Cap Exempt Organizations

  1. Provide flexibilities such as automatically extending the duration of F–1 status, until April 1st of the relevant fiscal year, rather than October 1st of the same fiscal year, to avoid disruptions in lawful status and employment authorization for F–1 students changing their status to H–1B.
  2. Broaden the definition of “non-profit research organization” and “governmental research organization” to include organizations that conduct research as a fundamental activity. This creates more flexibility for nonprofit and governmental research organizations and beneficiaries who are not directly employed by a qualifying organization


H-1B Cap Registration

  1. To significantly reduce fraud and abuse, and to make the lottery system fairer, USCIS would select registrations by unique beneficiary, instead of registration so that each foreign national would be entered once in the lottery, regardless of the number of registrants that submit a registration on his or her behalf. If the beneficiary’s registration is picked, 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.
  2. Clarify that related entities are prohibited from submitting multiple registrations for the same beneficiary, similar to the prohibition on related entities filing multiple cap-subject petitions for the same beneficiary for the same fiscal year’s numerical allocations.
  3. Codify USCIS’s authority to request contracts, work orders, and/or related documents to establish the contractual relationship between all parties, the terms and conditions of the beneficiary’s work, and the minimal education requirements to perform the work.
  4. Clarify the requirements regarding the requested employment start date on H–1B cap-subject petitions to permit filing with requested start dates that are after October 1st of the relevant fiscal year, consistent with current USCIS policy.
  5. Codify USCIS’s authority to deny or revoke an H-1B petition if the underlying registration contained a false attestation or was otherwise invalid.



It should be noted that this is not the final rule. It must go through the standard rulemaking process, which includes a 60-day comment period. Once DHS makes any changes and finalizes the proposals contained in this rulemaking through one or more final rules, it would likely do so in time for the fiscal year (FY) 2025 cap season that will open in March of next year.

Categories Department of Labor Department of State Immigration and Customs Enforcement News & Updates USCIS

How Would A Government Shutdown Impact Employment-based Immigration?

As of today, September 25, 2023, Congress has not agreed to the temporary spending measures needed to fund the U.S. government after the current fiscal year ends on September 30, 2023. If no agreement is reached by Saturday, key government agencies will be forced to shut down. Below is a list of the U.S. government agencies linked to business immigration and the impact a potential government shutdown will have on these agencies:

United States Citizenship and Immigration Services (USCIS)

USCIS is a fee-based agency, so its operations will mostly proceed as usual. E-Verify will be unavailable during the shutdown and employers may use the new remote Form I-9 document verification as an alternative.

Department of Labor

The Department of Labor’s Office of Foreign Labor Certification will disable the FLAG system and not process PERM labor certification applications, prevailing wage determination requests, and labor condition applications (LCAs) during the government shutdown. If you anticipate the need to any H-1B, E-3, or H-1B1 nonimmigrant petition filings soon, you may want to speak with your immigration counsel to see if you can submit LCAs for those cases this week. It will also be prudent to file any PERMs or prevailing wage determination requests that can be prepped this week as well.

Department of State

The Department of State is partially fee-funded, and passport issuance and visa processing should continue at the start of the shutdown. However, a prolonged shutdown could limit consular activities to emergency services at certain posts due to insufficient funding. If you have upcoming travel plans to the U.S. that require a visa, please speak with your immigration counsel on how those plans might be impacted by a potential government shutdown.

Customs and Border Protection (CBP)

CBP will remain open because its employees are essential personnel. However, travelers may experience application processing delays at the border. If you have upcoming travel plans to the U.S. that require applying at the border, please speak with your immigration counsel on how those plans might be impacted by a potential government shutdown.

Social Security Administration (SSA)

The SSA has stated that it will continue to issue new social security cards and numbers in the event of a government shutdown. But thousands of SSA employees will be furloughed during the shutdown, and that can potentially cause significant delays with card and number issuance.

Please contact us with any questions at

Categories Compliance News & Updates USCIS

Biometrics Fees For Dependents No Longer Required

U.S. Citizenship and Immigration Services (USCIS) today announced that it is exempting the biometric services fee for Form I-539, Application to Extend/Change Nonimmigrant Status.

Beginning October 1, 2023, USCIS is exempting the $85 biometric services fee as part of the application process for Form I-539, which includes those apply for H-4 and L-2 status, among others. Applicants should not pay the biometrics fee if the application is postmarked on or after October 1st.

For those who file prior to October 1st, the biometrics fee will still be required and an ASC appointment will be scheduled. For cases filed after October 1st, USCIS may still determine  that biometrics are required, in which case the applicant will receive a notice with information about appearing for their biometric services appointment.

Overall, this is great news not only in terms of lower cost, but also for streamlining the approval process.

Please contact us with any questions at

Categories News & Updates USCIS

USCIS Launches Online Appointment Request Form

U.S. Citizenship and Immigration Services has launched a new online form for individuals, attorneys, and accredited representatives to request an in-person appointment at their local field office without having to call the USCIS Contact Center.

This online appointment request form allows individuals or legal representatives to request an in-person appointment at a field office only, for ADIT stamps, Emergency Advance Parole, Immigration Judge Grants, and more. It is not a self-scheduling tool and individuals cannot schedule their own appointments with USCIS. The USCIS Contact Center will review submitted forms and the availability of in-person appointments at a specific field office. Individuals may request a specific date and time for an in-person appointment, but USCIS cannot guarantee that the requested appointment date will be scheduled. USCIS will confirm and schedule the individual for an available in-person appointment date and time.

USCIS continues to demonstrate our commitment to supporting the Executive Order on Transforming Federal Customer Experience and Service Delivery to Rebuild Trust in Government by introducing new initiatives in hopes of improving the customer experience.

The online appointment request form is expected to enhance the customer experience by collecting required information upfront and potentially scheduling the requested appointment without any further engagement with the USCIS Contact Center. The Contact Center may need to contact an individual either by phone or email depending on the appointment reason and urgency, using the reference number provided to them at the time the request was submitted.

Visit for more information on the online appointment request form.

Categories Compliance News & Updates USCIS

I-9 Update: examination of documents virtually

Earlier this week we received great news on the virtual examination of documents for I-9 purposes. The USCIS just announced that they will be publishing a revised form I-9 and accompanying regulations that will allow employers to establish procedures to examine documents remotely on a permanent basis and would exempt qualified employers from the physical reexamination for those previously completed I-9s.


For an employer to be eligible for this, the employer must:


  • Be enrolled in E-Verify and in good standing;
  • Complete the E-Verify tutorial that includes fraud awareness and antidiscrimination training (this should be done by all the employer’s users of E-Verify);
  • Offer the procedure to all employees in the site where it implements the procedure, except that an employer may choose to limit this to employees who work exclusively remotely or on a hybrid schedule;
  • Examine copies (front and back, if the document is two-sided) of the documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine;
  • Conduct a live video interaction with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the individual. The employee must first transmit a copy of the document(s) to the employer (per the step above) and then present the same document(s) during the live video interaction;
  • Indicate on the Form I-9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable;
  • Retain clear and legible copy of the documentation (front and back if the documentation is two-sided);


This new procedure takes effect on August 1, however employers who are eligible for the new procedure may use this procedure in relation to those I-9s that were completed based on COVID-19 flexibilities. To take advantage of this new procedure in relation to the I-9s completed during the previous period, employers must:


  • Have been enrolled in E-Verify at the time they performed a remote examination of an employee’s Form I-9 documentation for Section 2 or reverification while using the COVID-19 flexibilities;
  • Created an E-Verify case for that employee (except for reverification); and
  • Performed the remote inspection between March 20, 2020 and July 31, 2023, can use the alternative procedure to satisfy the required physical examination of the employee’s  documents for that Form I-9. Such employers should not create a new case in E-Verify. All employers that use the alternative procedure instead of physical examination as described above must follow the steps of the alternative procedure and add “alternative procedure” with the date of examination (i.e., the date the employer performed a live video interaction as required under the alternative procedure) to the Section 2 Additional Information field on the Form I-9 or in Section 3, as appropriate.


We are pleased to see these changes from USCIS, which more closely mirror the realities of a post-pandemic workplace. Please contact us with any questions at