DHS Announces Proposed H-1B Visa Reforms

The U.S. Department of Homeland Security (DHS) has published a notice of proposed rulemaking (NPRM) today, on October 23, 2023, putting forward changes to the existing regulations that will update the H-1B visa program.

The proposed reforms aim to enhance integrity checks, modernize and optimize the H-1B program, and provide benefits and flexibility to petitioners and beneficiaries.

A 60-day public consultation on the proposals is now open. Comments can be submitted until December 22, 2023.

 

What are the proposed changes to the H-1B visa?

The changes include updating the regulatory definition of “specialty occupation“, expanding the eligibility for H-1B cap-exempt petitions, codifying its deference policy, and making clearer the conditions for the H-1B petition filing.

The NPRM also puts forwards suggestions to give businesses the option to select a start date for cap-subject H-1B applications on or after October 1, prolonging the cap-gap extension until April 1 of the fiscal year (FY), as well as making sure a legitimate job offer for a specialty occupation role exists, adhering to site inspection requirements and revising rules for petitions involving third party placements.

In addition, instead of registering under the H-1B lottery, the NPRM proposes selecting registrants based on unique beneficiaries and removes the potential for connected companies to submit numerous registrations on behalf of the same beneficiary.

The changes in details are as follows:

 

Specialty occupation

As per the current regulations, an occupation that necessitates the theoretical and practical application of a highly specialized knowledge base in various fields of human endeavour is classified as a “specialty occupation.” Typically, a Bachelor’s degree or its equivalent in a particular specialty is the minimum requirement for this type of occupation. The goal of the NPRM is to codify current U.S. Citizenship and Immigration Services (USCIS) practises by updating the regulatory definition and standards of speciality occupation. The NPRM specifically suggests codifying the following specifications for the kind of job that would be considered a speciality occupation:

• The degree fields needed must be closely relevant to the responsibilities of the position.
• It is insufficient to earn a general degree in a discipline like business administration or liberal arts without pursuing further specialisation.

If each of the qualifying degree fields is directly relevant to the position, the position may require more than one degree field.
According to the NPRM, “normally” is defined as “conforming to a type, standard, or regular pattern.” The petitioner is not required to prove that a bachelor’s degree in a certain specialty is always the minimal qualification.

 

Registration for H-1B

According to the NPRM, USCIS should choose registrations according to each recipient. No matter how many people register on a beneficiary’s behalf, the beneficiary will only be placed into the lottery once. Each registrant who filed a registration on behalf of the beneficiary will be informed if USCIS chooses to approve the beneficiary’s registration, and they will all be qualified to file the petition on the beneficiary’s behalf.

The NPRM goes one step further and prohibits connected companies from filing multiple H-1B registrations for the same beneficiary in addition to the prohibition on filing multiple H-1B cap-subject petitions for the same beneficiary.

 

Genuine job offer

With the help of the NPRM, USCIS will be able to: (1) request contracts, work orders, or other comparable documentation attesting to the availability of a beneficiary’s labour and the minimal level of education needed to carry out the beneficiary’s responsibilities; and (2) examine and ascertain whether the certified LCA appropriately supports and aligns with the H-1B petition.

The definition of a “U.S. employer,” which USCIS employs to assess a firm’s eligibility as an H-1B petitioner, is likewise updated by the NPRM. In the revised definition, there is no longer any mention of an employer-employee relationship, and the petitioner must have given the H-1B recipient a genuine job offer in order for them to be permitted to work in the country. In accordance with the revised definition, the petitioner must also be able to be served with legal documents within the country and have a valid legal presence there.

 

H-1B cap exemptions

The NPRM suggests making eligibility requirements for cap-exempt H-1B applications more straightforward and flexible. The NPRM specifically aims to make it clear that H-1B workers may be cap-exempt even if they are not directly employed by a qualified organization as long as they work at a qualifying organisation (either remotely or on site) for at least half of their time.

Additionally, the NPRM seeks to make it clear that H-1B employees may file a cap-exempt H-1B petition if their labour directly advances the goal, mission, objective, or function of the qualifying organization—albeit perhaps not primarily.

Lastly, the NPRM suggests changing the definitions of “government research organisation” and “nonprofit research organisation” to read “a fundamental activity of” in place of “primarily engaged in” and “primary mission.” The purpose of this modification is to make it clear that governmental and nonprofit research organisations may still be eligible for the cap exemption even if they are involved in many core activities that aren’t connected to any qualified research activities.

 

Amended petitions

The NPRM specifies that in the event that a worksite change necessitates the filing of a new Labour Condition Application (LCA), the petitioner shall first file an amended petition prior to the H-1B worker being permitted to operate at the new worksite. The NPRM also makes it clear that if the beneficiary is travelling to a place to engage in employee development activities, spend “little time at any one location,” or have a “peripatetic job,” an amended petition is not necessary.

 

Deference

The NPRM recommends that USCIS officers should defer to a prior determination on any Form I-129 petitions when the request involves the same parties and facts, in accordance with current advice found in the USCIS Policy Manual. If a prior approval contained a major error, there was a material change in the applicant’s circumstances or eligibility, or there was new material information that would have a negative impact on eligibility, USCIS is not required by the Policy Manual to accord deference to the prior approval.

 

Evidence of Maintenance of Status

According to the NPRM, in order to request an amendment or extension of stay, the petitioner or applicant must present proof that they maintained their previous nonimmigrant status prior to filing for the extension, along with examples of acceptable proof.

 

Removal of H-1B Itinerary Requirement

The goal of the NPRM is to do away with the H-1B petition itinerary criteria.

 

Validity Expirations Prior to Decision-Making

According to the NPRM, USCIS may issue a Request for Evidence (RFE) to petitioners allowing them to amend the dates of intended employment and submit a corresponding LCA, even if the LCA was certified after the H-1B petition was filed, if officers decide an H-1B petition and it is otherwise approved after the originally requested validity period end-date.

 

Cap-Gap Extension

The NPRM suggests offering an automatic extension of stay and post-completion optional practical training (OPT) until April 1 of the relevant fiscal year (FY) in which the H-1B petition is requested or until the approved H-1B petition’s validity start date, whichever is earlier, in response to adjudication delays.

 

Start Date Flexibility for H-1B Cap-Subject Petitions

In H-1B cap-subject petitions, the NPRM suggests allowing petitioners to request a start date of October 1 or later, provided that the requested start date does not go beyond the petitions’ filing date by more than six months.

 

Site inspections

The purpose of the NPRM is to formalise USCIS’s jurisdiction over site inspections. Additionally, it aims to formalise the need that any third-party contractor or H-1B petitioner grant access to all locations where work will be done in order to assess compliance with H-1B regulations. Furthermore, the NPRM makes clear that USCIS may cancel or revoke the H-1B visas of the relevant beneficiaries if an employer or other third party refuses to participate or fails to comply fully with an inspection.

 

Third-party working arrangements

According to the NPRM, USCIS will consider the third party’s requirements for the beneficiary’s employment instead of the petitioner’s requirements where the H-1B worker is employed by a third party.

 

Next steps

Once the consultation closes on December 22, 2023, DHS is likely to pass the reforms, whether in their current or a revised form, through one or more final rules for the new provisions to be in effect in time for the FY 2025 cap season.

 

Need assistance?

NNU Immigration are US immigration, visa and nationality specialists. Our attorneys provide expert advice and guidance to employers and workers on US visa options, including H-1B applications. For more information on DHS’s proposals to reform the H-1B process, and to discuss how you can prepare your organisation for any upcoming changes, contact us.