Proposed Regulation Amending Aspects of the H-1B Program Under Federal Review
A U.S. Citizenship and Immigration Services proposed rule that would amend several aspects of the H-1B program has been submitted to the Office of Management and Budget for review. The rule is expected to amend the definition of the employer-employee relationship, establish site visit requirements and guidelines, address F-1 cap-gap issues, clarify H-1B amendment requirements, and increase anti-fraud safeguards in the H-1B cap registration system. The proposal is slated for publication in the Federal Register in December 2023.
The issue
U.S. Citizenship and Immigration Services (USCIS) has submitted for federal review a highly anticipated proposed regulation that would amend several aspects of the H-1B program. The proposed rule is now under review at the Office of Management and Budget (OMB), the first step in the regulatory process. Publication of the proposal in the Federal Register is scheduled for December 2023, but the date of publication will depend on the speed of the federal review, which typically takes several months.
The specific contents of the proposed regulation are not yet known and will remain so until the proposal is released for publication in the Federal Register. Based on USCIS’s description of the rule, however, it is expected to:
- Amend the definition of “employer-employee relationship” and provide flexibility for start-up entrepreneurs
- Codify requirements and guidelines for the longstanding Fraud Detection and National Security (FDNS) site visit program, including for H-1B dependent employers that cannot be validated through commercially available data
- Address “cap-gap” issues for F-1 nonimmigrants
- Provide flexibility on the H-1B employment start date listed on the Form I-129 petition in limited circumstances
- Clarify the requirement that an amended or new H-1B petition must be filed when there has been a material change to the H-1B employment, including streamlining notification requirements relating to certain worksite changes. These changes are expected to impact USCIS guidance that has been in effect since July 2015, after the Administrative Appeals Office (AAO) decision Matter of Simeio Solutions, LLC resulted in a stricter framework for H-1B amendments related to worksite changes.
- Increase anti-fraud safeguards in the H-1B cap registration system. The high number of registrations submitted in the FY 2024 H-1B registration period raised concerns from USCIS about potential misuse of the registration process, prompting the agency to conduct investigations and make criminal referrals to law enforcement. The proposed H-1B rule is expected to introduce measures designed to reduce the potential for misuse so that the events of the FY 2024 H-1B cap registration are not repeated.
Next steps
After OMB clearance of the proposed rule, it will be released for publication in the Federal Register. USCIS is expected to accept public comments on the proposal for 60 days after Federal Register publication. After considering the comments, the agency will then publish a final version of the rule, which will include an implementation timeframe.
It is not yet clear whether the rule will be finalized in time for the FY 2025 H-1B cap season, beginning in March 2024, but USCIS officials have indicated that new anti-fraud provisions are a priority in the agency’s effort to increase safeguards against misuse of the H-1B cap registration process.
We are closely following the progress of the H-1B proposed rule and will provide updates as they become available.