USCIS Proposes Modernization of the H-1B Program

A new proposed rule seeks to enhance integrity and prevent misuse of the H-1B cap registration system, revise the definition of an H-1B specialty occupation, strengthen cap-gap protections for F-1 students awaiting a change of status to H-1B, and clarify when a nonimmigrant visa petition must be amended and when amendments are not required, among other provisions. The proposed rule will be published on Monday, October 23. USCIS will accept public comments for 60 days. The proposed provisions will not take effect until they have been finalized and cleared federal review. Some provisions could be finalized in time for the opening of the FY 2025 H-1B cap season in early 2024. USCIS says it may implement the provisions in stages through one or more final rules.

The issue

USCIS will soon publish a long-planned proposal to modernize the H-1B program and make changes to other nonimmigrant visa petition processes and requirements. The proposal aims to safeguard the H-1B cap registration process from misuse, revise the definition of the H-1B specialty occupation, clarify when employers must amend nonimmigrant petitions due to material changes in employment, extend F-1 cap-gap protection, and codify the Fraud Detection and National Security site visit program, among other proposals. The regulation will be published in the Federal Register on Monday, October 23. USCIS will accept public comments for 60 days thereafter. 

The provisions of the proposed regulation will not take effect until they have been finalized and approved by the federal Office of Management and Budget. USCIS says that it may finalize and implement the provisions in stages, with some possibly taking effect before the FY 2025 H-1B cap process begins in early 2024.

What the proposed rule aims to achieve

• H-1B cap registration. The proposal aims to strengthen the H-1B cap registration system and process to safeguard against misuse, in response to allegations earlier this year that a number of organizations had attempted to “game” the registration system by filing multiple registrations for a single beneficiary. The agency is proposing to select registrations by unique beneficiary to ensure that each unique beneficiary has the same odds of selection even when multiple registrations have been submitted on their behalf. The agency is also seeking to codify its authority to deny or revoke an H-1B petition if the underlying registration contained a false attestation or was otherwise invalid.
• Qualifying H-1B occupations. USCIS would substantially revise the definition of an H-1B specialty occupation. A number of the proposed revisions would introduce greater flexibility to the definition. In particular, the proposed rule would clarify that an occupation “normally” requiring a bachelor’s degree doesn’t mean that it must “always” require a bachelor’s degree. In addition, the rule would acknowledge that a position may qualify as an H-1B specialty occupation even if the employer accepts degrees in a broad range of specialty fields, provided the fields are related to the duties of the position – an issue that has been subject to significant litigation in the past and continues to be the subject of USCIS Requests for Evidence. But the agency also proposes a new regulation for off-site placements which would provide that when 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.
• H-1B location changes and petition amendments. The rule would codify the agency’s longstanding requirement that an employer must amend a nonimmigrant petition due to material changes in an H-1B worker’s place of employment, and would require the amendment to be filed before the change takes place. The proposal also clarifies when a location change would not require an amendment, including location changes within the area of intended employment listed in the DOL labor condition application (LCA) supporting the existing petition.
• Business owners’ H-1B eligibility. The regulation would clarify that 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.
• Bona fide H-1B employment. The rule would codify the agency’s longstanding practice of requesting contracts and other evidence that a bona fide, non-speculative job offer exists for each H-1B beneficiary, but would eliminate the itinerary requirement for H-1B petitions. The agency’s proposed rule would also add a requirement that the H-1B petitioner have a legal presence in the United States and be amenable to service of process here.
• Deference to prior nonimmigrant adjudications. USCIS seeks to codify its current policy of deference to its prior adjudications, which would give employers greater predictability when seeking the extension of a nonimmigrant employee’s stay where there has been no material change in the facts underlying the case.
• Greater F-1 cap-gap protections. Provide a longer cap-gap protection period (extending the period from October 1 to potentially as late as April 1 of the following calendar year) for F-1 students who are beneficiaries of timely petitions to change status to H-1B. The proposal seeks to provide up to an additional six months of status and employment authorization to help qualifying F-1 status holders avoid lapses in status and work authorization while awaiting a change to H-1B status.
• Mitigate impact of lengthy petition adjudications. The rule as proposed would allow employers to amend the requested nonimmigrant employment validity period in a petition when the beneficiary’s current petition expires before the pending petition has been adjudicated to completion.
• Codification of the site visit program. The rule would codify USCIS’s long-established Fraud Detection and National Security (FDNS) unit’s site visit program and clarify that refusal to comply with a site visit can result in the denial or revocation of a petition.

What this means for employers and foreign nationals

The rule is a proposal only and will not take effect until it clears the federal review process, which typically takes several months. After the 60-day public comment period, USCIS will consider public comments and finalize the rule’s provisions through one or more final rules. The agency has indicated that H-1B cap anti-fraud provisions are a priority, so those provisions may be among the first to be finalized.