As we reported in our Alert of October 24, 2023, United States Citizenship and Immigration Services (USCIS) issued on October 23, 2023, 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. A number of the provisions of this Proposed Rule, including the reform of the H-1B Cap registration system, were adopted and published in a regulation that became effective in March of this year. The Proposed Rule containing a number of other provisions affecting H-1B petitions has now moved to the Office of Management and Budget (OMB) for review. Once OMB completes its review, a Final Rule will be published in the Federal Register with an implementation date.
It is possible, as we noted in a recent Alert on a different subject, that the lame-duck Biden administration is accelerating its efforts to preserve or introduce a number of immigration benefits before the Trump administration is inaugurated on January 20, 2025. The Proposed Rule to modernize the H-1B program may be part of such an effort. It is not clear if there is enough time for the Proposed Rule to become effective before January 20, 2025. Such a rule would typically become effective at least thirty calendar days after publication, so the window of opportunity is very small. If the Proposed Rule does not become effective by January 20, 2025, the Trump administration may withdraw it.
The text of the Proposed Rule has not yet been made public, but it is likely that it will contain all, or some, of the following provisions.
Revision of the Definition of an H-1B Specialty Occupation
The Proposed Rule may 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 may make 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 earlier Proposed Rule did 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 may make 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 may clarify 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—may be 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 may confirm 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 may, 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 may provide that amended H-1B petitions are not needed when an H-1B beneficiary travels on a peripatetic basis to other locations. The Proposed Rule may align with existing Department of Labor (DOL) regulations that regulate when a new LCA is required.
Deference to Prior USCIS Adjudications
The Proposed Rule may clarify 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 may be eliminated in the Proposed Rule.
Evidence of Maintenance of Status Requirement
The Proposed Rule may 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 may address 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) may be eligible for an extended period of stay and employment authorization until April 1st of the relevant fiscal year, instead of the current date of October 1st of the fiscal year.
Changes to Definitions of U.S. Employers and Employer/Employee Relationship
The Proposed Rule may seek 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 could 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 will probably remain in place.
H-1B Employment by Beneficiary-Owners
Acknowledging the value that noncitizen workers and entrepreneurs bring to the United States, the Proposed Rule may 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 could 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 could 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 Proposed Rule, if implemented, would represent the most significant overhaul of the H-1B category since the January 17, 2017, Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers Final Rule, which became effective during the last days of the Obama lame-duck administration. 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 monitor the progress of the Proposed Rule in the coming weeks.
