What are the goals of the proposed rule?
The United States Citizen and Immigration Services (“USCIS”) is hoping to modernize and improve H-1B rules and regulations. The agency hopes to streamline H-1B requirements and improve the efficiency of the program. It also hopes to provide greater benefits and more flexibility to U.S. employers and H-1B beneficiaries. Finally, it is aiming to improve the program’s integrity measures.
How is USCIS going to streamline requirements and improve H-1B efficiency?
The proposed rule will update the definition of “specialty occupation” and will similarly update the criteria required to meet the new definition. One of these revisions will clarify that while a bachelor’s degree is “normally” required for an H-1B position, this does not mean that a bachelor’s degree is “always” required, providing U.S. employers with greater flexibility in skills-based hiring.
The proposed rule will also clarify that a variety of positions can qualify a beneficiary for a “specialty occupation,” although the degree must still be directly related to the job duties. It will also clarify when an amended petition must be filed based on a change in the employee’s worksite.
Finally, the proposed rule will expressly state a general deference to prior USCIS decisions when a beneficiary is applying for an amendment to or extension of their stay. In connection with this, the proposed rule will also expressly state that evidence of the beneficiary’s maintenance of status will be required for all amendment or extension petitions.
How is USCIS going to provide greater benefit and flexibility?
USCIS is modernizing the definition of CAP-exempt employers to create more flexibility for nonprofit and governmental research organizations as well as beneficiaries who are not directly employed by those organizations. The change involves updating the definition from stating an organization is CAP-exempt if it is “primarily engaged” with research to stating an organization is CAP-exempt if it is “fundamentally engaged” with research.
Additionally, under the proposed rule, a beneficiary who is selected in the CAP process will have their F-1 status and related employment authorization extended until April 1 of the applicable fiscal year (FY) to allow for greater flexibility in the change of status. For instance, a beneficiary in F-1 status who is selected in the FY 2024 CAP would have their F-1 status and any employment authorization automatically extended to April 1, 2025. Related to this, the proposed rule would allow for a petition start date after October 1 of the applicable fiscal year, giving both the U.S. employer and the beneficiary greater flexibility in selecting a start date.
How is USCIS going to improve integrity measures?
Under the proposed rule, the CAP selection process would change so that selections are based on the unique beneficiary, rather than the unique registration. USCIS’s hope is that this will reduce potential fraud, giving each beneficiary the same chance of being selected no matter how many companies submit a registration on their behalf. The proposed rule will also clarify that just as no single entity is permitted to submit multiple registrations for the same beneficiary, no related entities are permitted to submit registrations for the same beneficiary. Finally, in relation to the CAP selection process, the proposed rule would expressly state that USCIS has the right to deny H-1B petitions or revoke H-1B approvals upon discovering that the underlying registration contained a falsehood or was otherwise invalid.
Finally, the proposed rule will state USCIS’s right to conduct site visits as well as its right to revoke or invalidate status based on refusal to comply with a site visit.
When does this proposed rule take effect?
The rule is open for public comment until December 22, 2023. You can submit a comment by going to https://www.regulations.gov/document/USCIS-2023-0005-0001. Once all comments are considered, USCIS will move to finalize any or all portions of the proposed rule. The agency’s goal is to have these finalized by the start of FY 2025. Until then, these rules do not have any impact.
Please don’t hesitate to contact Zulkie Partners if you have questions about how these rules would affect you or about your H-1B status.