U.S. Citizenship and Immigration Services on Friday posted a proposed regulation to “modernize” the H-1B visa program.

‌The proposed rule would have broad consequences for H-1B oversight and requirements; however, it is still in the early stages of rulemaking. Once the proposal is published, the government will accept public comments for 60 days and will review the comments before publishing a final rule. It is not yet clear whether the rule will be in place in time for FY2025 H-1B cap registration.

USCIS said the proposed rule was crafted to (1) modernize H-1B requirements and improve efficiency, (2) provide greater benefits and flexibilities for petitioners and beneficiaries and (3) improve integrity measures.

  • Modernization and Efficiencies: USCIS proposes to streamline H-1B requirements by revising the criteria for a “specialty occupation,” including clarifying that a position may allow a range of degrees, but there must be a direct relationship between the required degree field or fields and the duties of the position. The agency also proposes to clarify when an amended or new petition must be filed due to a change in an H-1B worker’s place of employment. The agency also proposes to codify its policy that if there has been no material change in the underlying facts, adjudicators generally should defer to prior determinations involving the same party.
  • Benefits and Flexibilities: USCIS proposes to update its rules to allow for more flexibility for nonprofit and governmental research organizations and beneficiaries who are not directly employed by a qualifying organization. It also proposes to address “cap-gap issues” by extending F-1 status and related work authorization to April 1 of the relevant fiscal year rather than Oct. 1.
  • Program Integrity: USCIS proposes to address H-1B cap registration “abuse” by changing the way the agency selects registrations. Under the proposal, USCIS would select registrants by unique beneficiary rather than registration. This means that each beneficiary would have the same chance of being selected, regardless of how many registrations are submitted on their behalf. Last year, more than half of H-1B registrations were for beneficiaries with more than one registration. The agency also proposes other measures to enhance program integrity, including requiring petitioners to establish they have an actual, non-speculative position in a specialty occupation available for the beneficiary as of the requested start date.

Additional Information: The 227-page rule is expected to be published in the Federal Register on Monday, Oct. 23. A pre-publication version was posted Friday and is available here.

BAL Analysis: The proposed rule would have significant impacts to the H-1B visa program, but it is not clear if the new provisions or a proposed increase to the H-1B registration fee will be in effect in time for the upcoming cap season registration. USCIS indicated it may seek to finalize provisions related to cap registrations separately from other provisions in the proposal to have those in place for the upcoming cap season. BAL will continue to review the proposed regulation and will provide updates as it moves through the regulatory process. BAL will host a webinar on the proposed changes to the H-1B program. Details will be available soon.

This alert has been provided by the BAL U.S. Practice group.

Copyright ©2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.