Department of Homeland Security Proposes H-1B Program Rule
The U.S. Department of Homeland Security (DHS) has introduced a notice of intended rulemaking (NPRM), aiming to modernize and enhance the H-1B specialty occupation worker program’s regulations.
Through this proposed rule, the DHS aims to:
- Simplify the H-1B program requirements
- Enhance the program’s overall efficiency
- Offer more flexibility to both applicants and beneficiaries than before
- Strengthen measures for ensuring integrity among applicants and beneficiaries
Provisions of the Proposed H-1B Program Rule
Among the additional provisions in the proposed rule are:
Simplifying Eligibility Requirements
Revisions would be made to the criteria for specialty occupation positions, emphasizing a direct correlation between the required degree field(s) and job responsibilities. The proposal acknowledges the potential for multiple acceptable degree fields for a specialty occupation, while emphasizing that a general degree would not be sufficient to qualify.
Enhancing Program Efficiency
The DHS will clarify the circumstances under which an amended or new petition is required due to a change in the H-1B worker’s place of employment, following current policy guidance. The proposed rule also formalizes the practice that adjudicators should generally defer to a prior determination when there are no changes in underlying facts at the time of a new filing.
Offering More Benefits & Flexibility for Employers & Workers
Certain exemptions to the H-1B cap will be expanded for specific nonprofit entities or governmental research organizations and for beneficiaries who are not directly employed by a qualifying organization. The DHS will also extend certain flexibilities for students holding an F-1 visa who seek to change their status to H-1B. Furthermore, new H-1B eligibility requirements will be established for emerging entrepreneurs.
Strengthening Integrity Measures
The H-1B registration selection process will be improved to minimize the potential for misuse and fraud. This includes the prohibition of related entities from submitting multiple registrations for the same beneficiary. The rule will also confirm USCIS’ authority to conduct site visits and clarify that non-compliance with site visits may lead to petition denial or revocation.
Public Feedback on the Proposed H-1B Program Updates
The NPRM provides for a 60-day public comment period, commencing upon its publication in the Federal Register. Comments can be submitted through Regulations.gov, following the provided instructions.
Please note that comments submitted through other means, such as emails or letters to DHS or USCIS officials, will not be reviewed.
DHS invites public feedback on the proposed rule, including input on legal and policy aspects, and alternative approaches. All properly submitted comments will be reviewed, carefully considered, and responded to before the issuance of a final rule.
Contact Heckler Law Group, U.S. immigration law firm, to navigate USCIS and DHS updates in the most thorough way possible.
Release Date: 10/20/2023