DHS Proposes Changes to the H-1B Program
On October 23, 2023, the Department of Homeland Security (DHS) will publish a Notice of Proposed Rulemaking (NPRM) to “modernize and improve the efficiency of the H-1B program, add benefits and flexibilities, and improve integrity measures.” Some of the proposed amendments will also impact other nonimmigrant classifications, including F-1 visa holders, and those that are filed on Form I-129, Petition for Nonimmigrant Worker.
Written comments must be submitted on or before December 22, 2023. I would recommend that immigration practitioners and companies that employ H-1B workers seriously consider submitting comments to NPRM, as this is one of the few times that we will have an opportunity to offer our perspectives and concerns and proposed regulatory changes.
This NPRM is very ambitious in the number of changes that DHS is looking to make to the H-1B program. Some of the proposals are not surprising and are merely an effort to codify case law as a result of the numerous lawsuits that USCIS has been involved in. Other provisions seem like a stark overreach in administrative authority, where USCIS is seeking to re-adjudicate certifications made by the U.S. Department of Labor (DOL). It is not clear if these new proposals will in fact result in fewer Requests for Evidence (RFEs) or provide adjudicating officers with more authority to issue RFEs.
The most eye-opening part of this NPRM is the data provided by DHS, which showed the significant amount of fraud that has taken place in the H-1B registration system by a small number of companies that collectively filed thousands of multiple registrations for the same beneficiaries.
Below is a summary of the NPRM and regulatory revisions that DHS is seeking to make.
Revising the regulatory definition of “specialty occupation”, including an explanation that (a) “normal” does not mean “always” in the context of an occupation requiring a particular educational degree; and (b) where an occupation may be filled by a range of degrees, there must be a direct relationship between the required degree field(s) and the job duties.
Clarifying when an amended or new H-1B petition must be filed because of a change in the place of employment (codifying Matter of Simeio Solutions, LLC)
Codifying the Deference Policy to state that if there has been no material change in the underlying facts (same parties, job duties and location), adjudicators should defer to a prior determination.
Revising the regulations to expressly require that a petition seeking an extension of status or amendment of stay (even without a request for an extension of the validity period) be accompanied by evidence of maintenance of status, which would impact any nonimmigrant visa petition (NIV) filed on Form I-129, Petition for Nonimmigrant Worker.
Eliminating itinerary requirement for H petitions because this information is repetitive of the information in the Labor Condition Application (LCA).
Allowing petitioners to submit requests to amend validity periods in the I-129, where the validity of the requested period expires before the petition is adjudicated, such as in cases where there is a Motion to Reopen/Reconsider.
Revising the definition of employers who are exempt from the H-1B cap by replacing “primarily engaged” and “primary mission” with “fundamental activity” to permit a nonprofit entity or governmental research organization that conducts research as a fundamental activity, but is not primarily engaged in research or where research is not a primary mission, to meet the definition of a nonprofit research entity.
Revising the requirements for beneficiaries to qualify for H-1B cap exemption when they are not directly employed by a qualifying organization, but still provide essential work, even if their duties do not necessarily directly further the organization’s essential purpose.
Extending the F-1 cap-gap for authorized period of stay and employment authorization, for F-1s who are chosen in the H-1B lottery, from October 1st of that fiscal year to April 1st of that fiscal year. For example, if an F-1 student has their H-1B registration selected and a non-frivolous H-1B petition is filed for a change of status to October 1, 2024, the F-1 student’s cap-gap would be extended to April 1, 2025.
Permitting employers to request an employment start date for H-1B cap-subject petitions that are after October 1st of the relevant fiscal year, so long as the start date is within six months of the date of filing (codifying Acquia Inc, et al., v. USCIS)
Reducing H-1B registration fraud/abuse by selecting a unique beneficiary (one beneficiary based on passport number) instead of selecting registrations.
Prohibiting related entities from submitting multiple registrations for the same beneficiary.
Enabling USCIS to deny H-1B petitions or revoke approved H-1B petitions where the underlying registration contained false attestations or was otherwise invalid.
Improving the integrity of the H-1B program by: (a) codifying USCIS’ authority to request contracts; (b) requiring that the petitioner establish that it has an actual, non-speculative position in a specialty occupation available for the beneficiary as of the requested start date; (c) ensuring that the LCA properly supports and corresponds with the petition; (d) revising the definition of “United States employer” by codifying the existing requirement that the petitioner has a bona fide job offer for the beneficiary to work within the United States as of the requested start date; and (e) requiring that the petitioner have a legal presence and be amenable to service of process in the United States.
Clarifying that beneficiary-owners may be eligible for H-1B status, while setting reasonable conditions for when the beneficiary owns a controlling interest in the petitioning entity.
Codifying USCIS’ authority to conduct site visits and deny or revoke approved H-1B petitions for the employer or third party site’s refusal to comply with site visits.
Clarifying that if an H-1B worker will be staffed to a third party, meaning they will be contracted to fill a position in the third party’s organization, as opposed to providing services at a third party location, it is the requirements of that third party, and not the petitioner, that are most relevant when determining whether the position is a specialty occupation. (Codifying Defensor v. Meissner)
Creating “use or lose” provisions to require beneficiaries of approved H-1B cap petitions to timely enter the U.S. and commence employment with the petitioner, as there is “a significant percentage of H-1B beneficiaries do not enter the United States within six months of the requested employment start date or H-1B petition approval date, whichever was later, or within 90 days of the visa validity start date. The data also show a large percentage of new or amended petitions received before the beneficiary’s arrival in the United States, suggesting that there may not have been a bona fide job opportunity available at the time of filing and the initial petition filed was simply to secure an H-1B cap number for the worker.”
We will be taking a deeper dive into some of these proposed changes to the H-1B program, so stay tuned!