In recent developments, the U.S. Citizenship and Immigration Services (“USCIS”) has introduced a set of proposed changes to the H-1B program. These changes aim to create a new era of efficiency and flexibility while enhancing program integrity. These proposed regulations are currently open to public feedback and will undergo further scrutiny before becoming official.

In this article, we provide you with an overview of these potential H-1B regulatory updates.

Modernization and Enhanced Efficiency

The USCIS proposes to streamline the H-1B program by making several key revisions:

1. Specialty Occupation Redefined: The definition and criteria for a "specialty occupation" are set to be revised, providing greater clarity and flexibility.
2. Flexibility in Degree Requirements: It's important to note that "normally" does not necessarily mean "always" when it comes to the criteria for a specialty occupation.
3. Degree Relevance Clarification: The USCIS will clarify that a position may accept a range of degrees, provided there is a direct connection between the required degree field(s) and the job duties.

These proposed changes are designed to empower employers to consider potential employees based on their skills and abilities, rather than rigid degree requirements.

Furthermore, the USCIS will provide clarification on when an amended or new petition must be filed due to changes in an H-1B worker's worksite. Additionally, the USCIS's deference policy will prioritize consistency, where previous decisions with unchanged underlying facts will guide future USCIS determinations.

A significant modification in these proposed regulations requires H-1B cases to include evidence of the beneficiary's maintenance of status when seeking extensions or amendments of stay. This policy applies to all employment-based nonimmigrant classifications that utilize Form I-129, Petition for Nonimmigrant Worker. Notably, the proposed rules eliminate the itinerary requirement, allowing employers to amend requested dates when the validity expires before adjudication.

Benefits and Enhanced Flexibilities

The USCIS aims to modernize the definition of H-1B cap-exempt employers, providing greater flexibility for nonprofit and governmental research organizations and beneficiaries not directly employed by a qualifying organization. The revised rules expand cap-exempt status to include nonprofit entities or governmental research organizations engaged in research as a fundamental activity, even if research is not their primary mission. Beneficiaries who provide essential work, even if it does not directly further the organization's essential purpose, may also qualify for H-1B cap exemption.

In a move designed to minimize disruptions for F-1 students transitioning to H-1B status, the USCIS will offer flexibilities, including an automatic extension of F-1 status and employment authorization until April 1 of the relevant fiscal year, instead of October 1.

Furthermore, the USCIS clarifies the requirements related to the start date on H-1B cap-subject petitions, allowing start dates beyond October 1 of the relevant fiscal year.

Program Integrity

To enhance the integrity of the H-1B program, the USCIS is proposing significant changes in the selection of lottery registrations. Instead of selecting by registration, USCIS will select registrations by unique beneficiary, ensuring that each beneficiary has an equal chance of selection, regardless of the number of registrations submitted on their behalf.

The proposed rules will also prohibit related entities from submitting multiple registrations for the same beneficiary. Additionally, USCIS will be empowered to deny H-1B petitions or revoke approved H-1B petitions if the underlying registration contains false statements or is invalid.

In an effort to bolster program integrity, the USCIS will:

1. Codify its authority to request contracts.
2. Require the petitioner to demonstrate the availability of an actual, non-speculative position in a specialty occupation for the beneficiary as of the requested start date.
3. Ensure that the labor condition application (LCA) aligns with the petition.
4. Revise the definition of "United States employer" to necessitate a bona fide job offer within the United States.
5. Add a requirement for the petitioner to have a legal presence and be amenable to service of process in the United States.

The proposed regulations also address beneficiaries who are business owners, specifying conditions under which they may be eligible for H-1B status. Moreover, USCIS will be granted the authority to conduct site visits. Failure to comply with these visits may result in the denial or revocation of the employer's petition.

The USCIS emphasizes that when an H-1B worker is contracted to fill a position at a third party's organization, the third party's requirements, not the petitioner's, will be of primary relevance in determining whether the position is a specialty occupation.

For personalized guidance on your immigration case or any questions regarding these proposed H-1B regulations, don't hesitate to reach out to World One Law Group. You can contact us at [email protected], call us at 425-250-8110, or book a consultation by completing our contact form. Our experienced immigration attorneys are here to assist you!