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
- 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.
- 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.
- 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.
- 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.
- Eliminates itinerary requirement for H-1B petitions.
- 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.
- 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.
- 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.
- 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
- 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.
- 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
- 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.
- 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.
- 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.
- 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.
- 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.