Key Points
- DHS and USCIS have issued a proposed rule to change the H-1B program
- The proposed rule was published in the Federal Register on October 23, 2023
- The proposed rule would change the registration selection process, streamline eligibility requirements, strengthen integrity measures, improve efficiency, and provide more benefits and flexibilities
Overview
The Department of Homeland Security (DHS) and US Citizenship and Immigration Services (USCIS) have issued a notice of proposed rulemaking to modernize the H-1B specialty occupation worker program.
What are the Changes?
The proposed rule proposes 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 most significant changes under the proposed rule would change the H-1B registration selection process to reduce the chance of fraud and misuse. Currently, individuals have a better chance of being selected in the H-1B lottery if more registrations are submitted on their behalf. The proposed rule would change the registration process so that each unique individual with a registration submitted on their behalf would only receive one entry into the H-1B lottery. This change would make the selection process fairer by eliminating the advantage of offering multiple registrations for a beneficiary to increase the chance of their selection.
The proposed rule would also give beneficiaries more options for a legitimate job offer because every registrant who submits a registration for a selected beneficiary could file an H-1B petition on the beneficiary’s behalf.
Along with the changes above, the proposed rule would improve the H-1B program in several ways, including:
- Streamline eligibility requirements
- Improve program efficiency
- Providing more benefits and flexibilities for workers and employers
- Strengthen 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. Still, there must be a direct relationship between the specialty occupation and the position’s duties.
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.
Another change the proposed rule would create is giving more benefits and flexibilities to workers and employers. Certain exemptions to the H-1B cap would be expanded to include governmental research organizations and nonprofit entities, along with beneficiaries indirectly employed by a qualifying organization. The rule would also extend certain flexibilities for F-1 students seeking to change their status to H-1B. Under the proposed rule, DHS would also establish new eligibility requirements for rising entrepreneurs.
Finally, the proposed rule would strengthen integrity measures by reducing fraud and misuse in the H-1B registration process. The rule would prohibit related entities from submitting multiple registrations on behalf of the same beneficiary. 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
The proposed rule was published in the Federal Register on October 23, 2023. A 60-day public comment period is now effective through December 22, 2023.
Written by: Lucy Halse, Content Marketing Associate, Envoy Global
Edited by: Dmitri Pikman, Supervising Attorney, Corporate Immigration Partners
Source: Department of Homeland Security (DHS)
