Last Updated on October 26, 2023
The Department of Homeland Security (DHS), through U.S. Citizenship and Immigration Services (USCIS), has issued a notice of proposed rulemaking to modernize the H-1B specialty occupation worker program.
Overview
The proposed rule includes several changes to the current H-1B program, including improving program efficiency, streamlining eligibility requirements, providing more benefits and flexibilities for workers and employers, and strengthening integrity measures.
One of the notable changes of the proposed rule would reduce the chance of fraud and misuse in the H-1B registration process. Currently, individuals have a better chance of being selected in the H-1B lottery if more registrations by more companies are submitted on their behalf. The proposed rule would change the process so that selection is made based on unique individual and not registration number. As such, while multiple companies offering legitimate jobs can still register the same individual, that unique individual could be entered into the lottery only once. Upon selection, the individual would choose which job offer to proceed with and file the full and complete H-1B petition. This change would eliminate the advantage individuals have been receiving from seeking multiple registrations from different employers to increase the chance of selection.
Along with the changes above, the proposed rule would improve the H-1B program in several ways, including:
- Streamlining eligibility requirements
- Improving program efficiency
- Providing more benefits and flexibilities for workers and employers
- Strengthening integrity measures
The proposed rule would streamline eligibility requirements by revising criteria for specialty occupation positions to clarify that a position may permit various degrees so long as there is a direct relationship between the degrees and the duties of the position. Additionally, the proposed H-1B rule would improve program efficiency by requiring adjudicators to defer to a prior determination when no underlying facts have changed at the time of a new petition filing.
The rule would also expand eligibility for H-1B cap-exempt employers by revising the definition of “non-profit research organization” and “governmental research organization” and would extend the “cap-gap” work authorized period for eligible F-1 graduates seeking to change their status to H-1B. Additionally, the proposed rule would establish new eligibility requirements for rising entrepreneurs who own a controlling interest in the company sponsoring the H-1B.
Lastly, the proposed H-1B rule would strengthen integrity measures to reduce fraud and misuse beyond changing the selection process. The rule would prohibit related entities from submitting multiple registrations on behalf of the same individual. The rule would also codify USCIS’ authority to conduct site visits, and it would clarify that an entity’s refusal to comply with site visits may result in a petition’s denial or revocation.
Looking Ahead
On Oct. 23, 2023, the proposed rule was published in the Federal Register. A 60-day public comment period is now in effect through Dec. 22, 2023.
Envoy is pleased to provide you with this information, which was prepared in collaboration with Anne Walsh, who is a Partner at Corporate Immigration Partners, P.C., a U.S. law firm who provides services through the Envoy Platform (the “U.S. Law Firm”).
Content in this publication is for informational purposes only and not intended as legal advice, nor should it be relied on as such. Envoy is not a law firm, and does not provide legal advice. If you would like guidance on how this information may impact your particular situation and you are a client of the U.S. Law Firm, consult your attorney. If you are not a client of the U.S. Law Firm working with Envoy, consult another qualified professional. This website does not create an attorney-client relationship with the U.S. Law Firm.
