USCIS Proposes H-1B Program Modernization Rule
USCIS has proposed a new rule, published October 23 in the Federal Register, seeking to enhance the integrity of the H-1B cap registration system, revising the definition of a Specialty Occupation, strengthening cap gap for F-1 students changing status to H-1B, and clarifying when a nonimmigrant visa petition must be amended and when it need not be. The public will be able to comment for 60 days and USCIS will review and take the comments into consideration. The finalized rule may be in place for the FY2025 H-1B cap lottery season, in March 2024. Some of the key elements of the proposed rule are summarized below:
H-1B cap registration. The rule aims to deter misuse of the lottery registration process, particularly multiple registrations for a single beneficiary. USCIS is proposing that registrations be selected by beneficiary, rather than employer/petitioner, to ensure that each unique beneficiary has the same odds of selection, even if they have multiple registrations filed on their behalf. The agency is 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.
Which occupations qualify for H-1B. USCIS is seeking to revise the definition of an H-1B Specialty Occupation. The proposed rule would clarify that an occupation which “normally” requires a bachelor’s degree doesn’t mean that it must “always” require a bachelor’s degree. Additionally, 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 longstanding policy that a material change in work location requires a petition amendment, prior to the change occurring. An amendment would not be required when the location change is within the same area of intended employment listed on the Labor Condition Application (LCA) from the original 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 subject 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 ease predictability of approvals when seeking the extension of a nonimmigrant employee’s stay where there has been no material change in the facts of the petition.
Greater F-1 Cap Gap protections. Cap Gap for F-1 students applying for a change of status to H-1B would gain a longer Cap Gap period, extending the period beyond October 1, potentially all the way through April 1 of the following calendar year. This provides up to an additional six months of status and work authorization to avoid lapse in work authorization while awaiting adjudication of their H-1B petition.
Mitigate lengthy adjudication times. The rule as proposed would allow employers to amend the requested nonimmigrant employment validity period in a petition if the petition’s requested validity period has already passed by the time the petition is adjudicated.
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.
