On Friday, October 20, the Department of Homeland Security released a proposed new rule, “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers.” The rule has been long-anticipated following the past H-1B cap season, which was plagued with allegations of fraud and abuse of the current system.
While the rule primarily focuses on the regulations governing H-1B specialty occupation workers to modernize and improve the efficiency of the H-1B program, add benefits and flexibilities, and improve integrity measures, some of the proposed provisions would narrowly impact other nonimmigrant classifications, including: H-2, H-3, F-1, L-1, O, P, Q-1, R-1, E-3, and TN.
What’s next: The rule is expected to be published on Monday, October 23, 2023. Which will initiate a 60-day public comment period.
What to expect: DHS intends to finalize the proposals contained in this rulemaking through one or more final rules, depending on agency resources. The goal-timeline for the new registration process is March 1, 2024.
The proposed provisions are categorized as Modernization and Efficiencies, Benefits and Flexibilities, and Program Integrity.
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In this brief alert, we’re summarizing the highlights in each category and will share a full summary on the substantive changes and their impacts.
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The proposed rule is expected to be officially published on Monday, October, 23, 2023.
Modernization and Efficiencies
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DHS proposes to streamline requirements for the H-1B program by: (1) revising the regulatory definition and criteria for a “specialty occupation”; (2) clarifying that “normally” does not mean “always” within the criteria for a specialty occupation; and (3) clarifying that a position may allow a range of degrees, although there must be a direct relationship between the required degree field(s) and the duties of the position.
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DHS proposes to clarify when an amended or new petition must be filed due to a change in an H-1B worker’s place of employment to be consistent with current policy guidance.
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DHS proposes to codify and clarify its deference policy to state 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.
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DHS proposes to update the 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. This policy would impact all employment-based nonimmigrant classifications that use Form I-129, Petition for Nonimmigrant Worker.
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DHS proposes to eliminate the itinerary requirement, which would apply to all H classifications, and allow petitioners to amend requested validity periods where the validity expires before adjudication.
Benefits and Flexibilities
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DHS proposes to modernize the definition of employers who are exempt from the annual statutory limit on H-1B visas to create more flexibility for nonprofit and governmental research organizations and beneficiaries who are not directly employed by a qualifying organization.
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DHS proposes to change the definition of “nonprofit research organization” and “governmental research organization” by replacing “primarily engaged” and “primary mission” with “fundamental activity” to permit a nonprofit entity or governmental research organization that conducts research as a fundamental activity, but is not primarily engaged in research or where research is not a primary mission, to meet the definition of a nonprofit research entity.
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DHS proposes to revise the requirements for beneficiaries to qualify for H-1B cap exemption when they are not directly employed by a qualifying organization, but still provide essential work, even if their duties do not necessarily directly further the organization’s essential purpose.
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DHS proposes to provide flexibilities, such as automatically extending the duration of F-1 status, and any employment authorization granted under 8 CFR 274a.12(c)(3)(i)(B) or (C), until April 1 of the relevant fiscal year, rather than October 1 of the same fiscal year, to avoid disruptions in lawful status and employment authorization for F-1 students changing their status to H-1B.
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DHS is proposing to 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 1 of the relevant fiscal year, consistent with current USCIS policy.
Program Integrity
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DHS proposes to address H-1B cap registration abuse by changing the way USCIS selects registrations. Instead of selecting by registration, USCIS would select registrations by unique beneficiary, to help ensure that each beneficiary would have the same chance of being selected, regardless of how many registrations are submitted on their behalf.
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DHS also proposes to 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.
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DHS proposes to codify USCIS’s ability to deny H-1B petitions or revoke an approved H-1B petition where the underlying registration contained a false attestation or was otherwise invalid.
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DHS proposes to improve the integrity of the H-1B program by: (1) codifying its authority to request contracts; (2) requiring that the petitioner establish that it has an actual, non-speculative position in a specialty occupation available for the beneficiary as of the requested start date; (3) ensuring that the labor condition application (LCA) properly supports and corresponds with the petition; (4) revising the definition of “United States employer” by codifying the existing requirement that the petitioner has a bona fide job offer for the beneficiary to work within the United States as of the requested start date, consistent with current DHS policy; and (5) adding a requirement that the petitioner have a legal presence and be amenable to service of process in the United States.
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DHS proposes to clarify that beneficiary-owners may be eligible for H-1B status, while setting reasonable conditions for when the beneficiary owns a controlling interest in the petitioning entity.
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DHS proposes to codify USCIS’s authority to conduct site visits and clarify that refusal to comply with site visits may result in denial or revocation of the petition.
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DHS proposes to clarify that if an H-1B worker will be staffed to a third party, meaning they will be contracted to fill a position in the third party’s organization, it is the requirements of that third party, and not the petitioner, that are most relevant when determining whether the position is a specialty occupation.
Through these provisions, DHS aims to prevent fraud and abuse and maintain H-1B program integrity.