Summary of Proposed Regulation to Change H1B Program

On Monday, October 23, 2023, the U.S. Citizenship and Immigration Services (USCIS) will publish a notice of proposed rulemaking in the Federal Register that, if implemented in its current form, would both codify a number of existing rules and make a number of significant changes to the H1B program. At this stage, however, this is merely a proposal, and the U.S. Department of Homeland Security (DHS) is seeking input from all stakeholders on the proposed rule. For now, we are providing a brief summary of only some of the key points from the proposal for the benefit of MurthyDotCom readers:

• Amends the definition of specialty occupation for purposes of a position qualifying as an H1B position.
  • Clarifies that a position will not qualify for H1B if it solely requires a general degree, such as business administration, without further specialization. Similarly, if the position’s degree requirement is too broad, such as one that could be met with any engineering degree in any field of engineering, this typically will not qualify for H1B purposes.
  • Conversely, the rule also explains that a Petitioner can list multiple disparate fields of study as the minimum entry requirement for a position, so long as the petitioner can establish how those different fields of study are directly related to the job duties.
• Clarifies that, in defining specialty occupation as a position that normally requires attainment of a bachelor’s in a particular field, “normally” does not mean “always.”
• Changes the regulation so that the four-prong analysis historically used to determine whether a position qualified as a specialty occupation is changed to only be part of the analysis; and, to change it to a three-prong analysis.
• Codify a number of policies, including the requirement to file an H1B amendment in most situations where the beneficiary is moving to a new work location, and various other policies, such as those related to the short-term placement of H1B workers, as detailed in existing U.S. Department of Labor (DOL) regulations.
• Codify and broaden the existing deference policy to cover all nonimmigrants using form I-129, where the petition involves the same parties and same material facts.
• Require petitions and applications to include evidence of maintenance of status in requesting to extend or amend the beneficiary’s stay.
• Eliminates the itinerary requirement for H1B and H-2 petitions
• Allow H1B petitions to be approved or have their requested validity period dates extended if the USCIS adjudicates and deems the petition approvable after the initially requested validity period end-date, or the period for which eligibility has been established, has passed. This typically would happen if the USCIS deemed the petition approvable upon a favorable motion to reopen, motion to reconsider, or appeal.
• Provides more flexibility regarding eligibility as a cap-exempt employer, or exemption from the H1B cap based on being placed at a qualifying cap-exempt employer’s work location if certain conditions are met.
• For F-1 students who have an H1B registration selected in the lottery, the proposed regulation would significantly extend cap-gap benefits based on a nonfrivolous H1B petition filed for the beneficiary. Rather than ending on October 1, cap-gap benefit would extend through April 1 of the following year, or until the validity start date of the approved H1B petition, whichever is earlier.
• Update language and provide greater flexibility regarding the requested start date of H1B cap cases.
• Several changes would be made to the H1B registration process in order to significantly reduce fraud and abuse, and to make the system more fair. Most notably, the system would be altered so that each foreign national would receive no more than a single entry in the lottery, regardless of how many job offers that individual receives. In addition, in order to qualify for the H1B lottery, the individual would be required to have a valid passport.
• Proposed rule would codify the authority of the USCIS to request contracts, work orders, and/or related documents to establish the contractual relationship between all parties, the terms and conditions of the beneficiary’s work, and the minimal education requirements to perform the work.
• Alters the definition of U.S. employer which, among other things, will make it much easier for a foreign national to be sponsored for an H1B position by a company he or she owns.
  • Also, for a petitioner that is more than 50% owned by the H1B worker, the beneficiary would be permitted to perform duties directly related to owning and directing the business – including duties that are non-specialty occupation duties – so long as more than half of the individual’s time will be spent performing specialty occupation duties.
    • Such petitions will be limited to an initial validity period of 18 months, and the first extension will be limited to another 18 months. Subsequent extensions would be permissible in up to 3-year increments, per normal.
  • Clarify that USCIS inspections may take place at the petitioner’s offices or the location where the beneficiary will work, including third-party worksites; and, that, the USCIS has the right to interview H1B workers, including in the absence of the employer or the employer’s representative. If the USCIS is denied access to any such work location during a site inspection, or denied the right to interview an H1B worker, this may result in the H1B petition being denied or revoked.

Again, this is solely a proposed regulation, and has no immediate impact on U.S. immigration law. In addition, the proposed rule is more than 200 pages in length, so this summary does not cover all of the proposed changes. The USCIS will give the public 60 days from the date of publication to provide input on the proposed changes, and then consider the comments before deciding how to proceed with this proposal. As soon as any updates are provided, the details will be posted on MurthyDotCom.

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