Final Rule on H-1B Modernization Under Federal Review; Cap Registration Changes Anticipated
A final DHS regulation that would revise some aspects of the H-1B program has been submitted to the Office of Management and Budget (OMB) for review. Contents of the rule now under OMB review will not be known until publication in the Federal Register. However, it is anticipated that a switch to a beneficiary-centric H-1B cap registration system and related H-1B anti-fraud measures will be included in the final rule. The full H-1B modernization rule may be implemented through one or more final rules, with some provisions – including any H-1B cap registration changes – potentially finalized in time for the start of the FY 2025 cap season.
The issue
The Department of Homeland Security (DHS) has submitted for federal review a final regulation that is expected to implement at least some of the provisions contained in the H-1B modernization proposal released in October, bringing the rule closer to publication and implementation. DHS has said that it may finalize and implement its H-1B modernization program in stages through one or more final rules, with some provisions possibly taking effect before the FY 2025 H-1B cap process begins in early 2024.
The specific contents of this final regulation are unknown and will remain so until the rule is released for publication in the Federal Register. However, DHS has stated that preventing misuse of the H-1B cap registration system is a high priority for the agency, and with the FY 2025 H-1B cap season approaching, this final rule could include the switch to a beneficiary-centric (rather than registration-centric) H-1B cap selection system set forth in the proposed rule, as well as general anti-fraud provisions that strengthen DHS’s ability to deny or revoke H-1B petitions and invalidate registrations that fail to comply with the new rules.
DHS accepted public comments on the proposed version of the H-1B modernization rule from late October 2023 to late December 2023. The final rule could contain modifications to the proposed rule, in response to public comments.
What’s next
After OMB clearance of the final rule, it will be published in the Federal Register with an implementation timeframe. The date of Federal Register publication will depend on the speed of federal review. However, any H-1B cap registration-related provisions affecting the FY 2025 H-1B cap would need to be in effect before the beginning of H-1B cap registration, which typically starts in early March.