DHS PROPOSED RULE LOOKS TO MODERNIZE THE H-1B SPECIALTY OCCUPATION WORKER PROGRAM

October 26, 2023

On October 20, 2023, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking (NPRM) with the goal to modernize the H-1B specialty occupation worker program. The proposed rule introduces improvements to program efficiency, greater benefits and flexibilities for employers and workers, streamlines eligibility requirements, and strengthens integrity measures.

The H-1B nonimmigrant visa program allows U.S. employers to employ foreign workers in specialty occupations on a temporary basis, helping U.S. employers to hire necessary employees to meet business needs and remain competitive in the global marketplace. Specialty occupations, defined by statute as occupations that require highly specialized knowledge and a bachelor’s or higher degree in the specific specialty, or its equivalent.

The proposed rule seeks to update and improve the current H-1B program by providing key updates in the following areas:

• The “Specialty Occupation” Definition

Adds language to the current definition that would align and codify current USCIS practice that there must be a direct relationship between the required degree field(s) and the duties of the position.

The position can require multiple degree fields if each of the qualifying degree fields are directly related to the position and its duties. General degree fields e.g., Business Administration or Liberal Arts, without additional specialization will not be sufficient.

• Amended Petitions

Codifies current USCIS policy guidance that any change in worksite that requires a new Labor Condition Application (LCA) necessitates the filing of an amended petition prior to the H-1B worker commencing work at the new worksite. An amended petition will not be not required where a change to a new job location is within the same area of intended employment.

• Deference

Codifies existing USCIS deference policy that USCIS officers should refer to prior determinations on any Form I-129 petitions when the request involves the same parties and facts. This deference will not be given in the event of material changes in circumstances or eligibility, or the prior approval was clearly erroneous.

• Evidence of Maintenance of Status

Updates the current regulations to require evidence of maintenance of status if a beneficiary is seeking an extension or amendment of stay. This proposed rule would apply to ALL Form I-129 nonimmigrant beneficiaries and not only H-1B petitions.

• Elimination of H-1B Itinerary Requirement

Proposes to eliminate the itinerary requirements for H-1B petitions that contain more than one work location.

• Validity Expirations Before Adjudication

Proposes that H-1B petitions will be approved or their requested validity dates will be extended if the petition is adjudicated and approved after the initially requested validity period end-date, or the period for which eligibility has been established has passed. This situation would most likely occur in the context of a motion to reopen, reconsider, or an appeal. USCIS may issue a Request for Evidence (RFE) which will allow petitioners to update the dates of intended employment and submit a corresponding LCA even if the LCA was certified after the H-1B petition was filed.

• H-1B Cap Exemptions

Clarifies that H-1B workers may be cap exempt if they are not directly employed by a qualifying organization. Additionally, the rule clarifies that H-1B workers are eligible for a cap-exempt H-1B petition if their works directly contributes, but not necessarily predominantly furthers, the qualifying organization’s purpose, mission, objective or function. .

• H-1B Registration

Proposes that USCIS select registrations based on each beneficiary. Each beneficiary with multiple registrations submitted on their behalf by multiple companies will only be entered into the lottery once. If USCIS selects the beneficiary’s registration, each company 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.

• Bona Fide Job Offer for a Specialty Occupation Position

Revises the definition of a “U.S. Employer” that USCIS uses to determine whether an employer is eligible as an H-1B petitioner. The proposed definition removes reference to an Employer-Employee relationship and proposes to codify the existing requirement that the petitioner have a bona fide job offer for the beneficiary to work within the United States. Additionally the proposed rule proposes to update the regulations to permit USCIS to evaluate whether the information on the LCA aligns with the information within the H-1B petition.

• Site Visits

Codifies USCIS’s authority to conduct site visits for H-1B workers and clarifies that any refusal or failure to fully cooperate with such an inspection can result in a denial or a revocation of the relevant beneficiaries’ H-1B visas.

 

Importantly, it must be noted that this is only a proposed regulation and has no immediate impact on current U.S. immigration law. Additionally, the proposed rule consists of more than 200 pages and therefore the summary above does not contain all of the proposed changes.

The official proposed rule from DHS can be found here. DHS will accept comments on the proposed rule until December 22, 2023. Following this period, DHS will then issue one or more final rules before any of the proposed changes can be implemented.

Any updates regarding the proposed changes and finals rules will be posted on our firm website.

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