United States Citizenship and Immigration Services (USCIS) issued yesterday a Proposed Rule that seeks to implement significant changes in the H-1B Specialty Occupation nonimmigrant category, including modernizing H-1B petition requirements and providing a greater degree of flexibility to certain individuals seeking H-1B status. The Proposed Rule’s provisions are not effective yet, and the USCIS invites comments on the Proposed Rule during a sixty-day period that will end on December 22, 2023. One or more Final Rules are anticipated once USCIS has reviewed and digested these comments and made any changes the agency feels are appropriate. There is no indication when the Final Rule(s) will be published, but USCIS stated an intention to implement at least some of these changes in time for the 2025 H-1B cap registration process, which begins in March of 2024.
H-1B Cap Registration System Reforms
The Proposed Rule attempts to reform the H-1B cap registration system to combat what USCIS sees as fraudulent attempts to advantage certain beneficiaries unfairly. Specifically, the Proposed Rule suggests a “beneficiary centric” process through which lottery selection would be based on a unique beneficiary rather than on a unique registration. Each unique beneficiary would be entered in the selection process once, without regard to how many registration applications have been filed on that beneficiary’s behalf. Each beneficiary would therefore have an equal chance at selection, regardless of how many registrations were submitted on their behalf. The USCIS would use a beneficiary’s passport information to identify that person and would require that the same passport information be entered by all entities filing a registration application on behalf of the beneficiary. When a beneficiary is selected in the lottery, all entities that submitted a registration on behalf of that individual will be notified and will be permitted to file an H-1B petition.
The Proposed Rule includes a prohibition on filing multiple registrations for a single beneficiary by one or more related entities. This is another effort to address attempts to increase unfairly the odds of selection. USCIS will also deny or revoke petitions that are found to have been based on false or otherwise invalid information in an H-1B registration application.
Revision of the Definition of an H-1B Specialty Occupation
The Proposed Rule will require, consistent with current USCIS practice, that there be a “direct relationship” between the academic degree that is required for the offered position and the duties of that position. The Proposed Rule makes it clear, however, that there may be more than one acceptable academic field for a specialty occupation, clarifying that a job can be classified as a specialty occupation if a petitioner accepts degrees in multiple academic fields for that position. The Proposed Rule does note that a position for which only a degree in a general field such as Business Administration or Liberal Arts is required will not qualify as a specialty occupation.
Revision of the Criteria for Specialty Occupations
The Proposed Rule makes it clear that an H-1B petitioner need not establish that a degree in a specific specialty is always required as a minimum requirement for entry into an occupation and clarifies that “normally” does not mean “always.” In addition, part of the second prong of the alternate H-1B criteria—that the duties of the position are “so complex or unique” that they can only be performed by someone with a bachelor’s degree in a specific specialty—is being consolidated into the fourth prong: that the duties are “so specialized and complex” that they require the knowledge and skills associated with obtaining a bachelor’s degree in a specific specialty.
Clarification of When an Amended H-1B Petition Must be Filed
Current USCIS regulations require H-1B petitioners to file amended H-1B petitions immediately when a material change occurs to an H-1B beneficiary’s terms and conditions of employment. The Proposed Rule confirms current USCIS practice by requiring that an amended H-1B petition be filed before an H-1B beneficiary relocates to a geographic area that would require a new Labor Condition Application (LCA). The Proposed Rule does, however, reiterate that an amended H-1B petition is not required when an H-1B beneficiary relocates to a place that is within the same Metropolitan Statistical Area (MSA) covered by the existing LCA. In addition, the Proposed Rule provides that amended H-1B petitions are not needed when an H-1B beneficiary travels on a peripatetic basis to other locations. The proposed DHS regulations would align with existing Department of Labor (DOL) regulations that regulate when a new LCA is required.
Deference to Prior USCIS Adjudications
The Proposed Rule clarifies the USCIS’ historically inconsistent position on the deference to be granted to prior H-1B petition adjudications by providing that USCIS officers adjudicating an H-1B petition involving the same parties and same “underlying facts” as a previously approved petition should defer to the prior approval and approve the petition, unless there was a material error in the prior approval or there has been a material change in circumstances or eligibility.
Elimination of Itinerary Requirement in H-1B Petitions
The current regulatory requirement that an H-1B petition involving services to be performed in more than one location must provide an itinerary is eliminated in the Proposed Rule.
Evidence of Maintenance of Status Requirement
The Proposed Rule would require that evidence of maintenance of status (such as pay stubs or tax records) be submitted with any petition seeking to extend or amend a beneficiary’s stay in the United States. Presently, maintenance of status evidence is only required when seeking to change or adjust status. This modification would extend to all nonimmigrant classifications, such as O-1, L-1, P-1, Q-1, R-1, and TN).
Petition and Extension of Stay Approvals After Requested Validity Period Has Expired
The Proposed Rule addresses the situation where an initially requested validity period has expired by the time USCIS adjudicates a petition (such as when an appeal or a motion to reconsider has been approved) by instructing officers to issue a Request for Evidence (RFE) that allows the petitioner to update the dates of intended employment.
Extension of Employment Authorization for F-1 Cap-Gap Benefit Recipients
Under the Proposed Rule, a recipient of Cap-Gap benefits (i.e., an F-1 student who was selected in the H-1B Cap lottery and on whose behalf an H-1B petition has been filed, but whose OPT or STEM OPT expires before H-1B Cap employment can start) would be eligible for an extended period of stay and employment authorization until April 1 of the relevant fiscal year, instead of the current date of October 1 of the fiscal year.
Changes to Definitions of U.S. Employers and Employer/Employee Relationship
The Proposed Rule seeks to change the definition of a U.S. employer for purposes of the H-1B nonimmigrant category. Current regulations rely on the existence of an employer/employee relationship, which involves an analysis of common law principles. Under the Proposed Rule, an employer would be defined as an entity that has made a bona fide job offer to the beneficiary to work in the United States, has a legal presence in the United States, and is amenable to service of process here. The requirement that the H-1B petitioner have an IRS Taxpayer Identification Number remains in place.
H-1B Employment by Beneficiary-Owners
Acknowledging the value that noncitizen workers and entrepreneurs bring to the United States, the Proposed Rule would make H-1B a valid option for certain beneficiaries who have a controlling interest in the petitioner by allowing them to spend up to half (50%) of their work time performing non-specialty occupation duties associated with owning a business.
FDNS Site Visits
The Proposed Rule would for the first time introduce regulatory provisions governing the Administrative Site Visit Program that has been undertaken by the USCIS’ office of Fraud Detection and National Security (FDNS) since June 2009. These provisions include the following: (1) site visits may include on-site visits, interviews with employer officials, review of an employer’s records and interviews with any other persons the USCIS considers appropriate; (2) the visit may take place at the petitioner’s headquarters, satellite locations, the beneficiary’s home office or a third-party worksite; (3) the H-1B petitioner or any other employer “must” allow access to all sites where work is performed; (4) if a petitioner or third-party contractor does not allow USCIS to interview an H-1B worker, the H-1B petition may be denied or revoked.
Conclusion
The October 23, 2023 Proposed Rule represents the most significant overhaul of the H-1B category since the January 17, 2017 Final Rule. Although most of its reforms to this category are favorable to H-1B petitioners and the beneficiaries employed by them, there are several provisions that could impact future planning around H-1B workers in unexpected ways. T&S will provide additional analysis of the Proposed Rule in the coming weeks.
