Proposed H-1B Rule
October 26, 2023On October 23, 2023, the U.S. Citizenship and Immigration Services (USCIS) published a notice of proposed rulemaking in the Federal Register. While this is merely a proposal, the rule, if implemented, would both codify a number of existing rules and make a number of significant changes to the H1B program.
Definition of “Specialty Occupation”
A role that is in a “specialty occupation” is the standard used to determine if a position qualifies for H-1B sponsorship. The proposed rule would require that there must be a direct relationship between the required degree field(s) and the duties of the position and that there may be more than one acceptable degree field for a specialty occupation. The proposed rule solidifies that H-1B criteria is not met if the position only requires a “general degree, such as business administration or liberal arts, without further specialization.”
The proposed rule defines the term “normally” as “conforming to a type, standard, or regular pattern” and the petitioner does not have to establish that a Bachelor’s degree (or its equivalent) in a specific specialty is always a minimum requirement.
H-1B Amendment Petitions
The proposed rule confirms that any change in worksite that requires a new Labor Condition Application (LCA) requires the petitioner to file an amended petition before the H-1B worker can work at the new worksite. Moreover, an amended petition is not required if the beneficiary is going to a location to participate in employee development activities, spend “little time at any one location,” or perform a “peripatetic job.”
Deference
The proposed rule confirms that the USCIS officer should defer to a prior determination on Form I-129 petitions if the request involves the same parties and facts. The Policy Manual does not require USCIS to give deference to a prior approval if there was a material error in the prior approval; a material change in circumstances or eligibility; or new material information that adversely impacts eligibility.
H-1B Eligibility for Entrepreneurs
The proposed rule would allow for the individual who owns the petitioning company to be eligible for H-1B status. A beneficiary who has a controlling interest in the company that petitions for H-1B status “may perform duties that are directly related to owning and directing the petitioner’s business as long as the beneficiary will perform specialty occupation duties authorized under the petition a majority of the time.”
Third Party Placement
Where an H–1B worker provides services for a third-party employer, USCIS will determine if the position qualifies as a “specialty occupation” based on the third-party employer’s requirements for the H-1B beneficiary’s position, rather than the petitioner’s requirements.
H-1B Lottery Integrity
The proposed rule would allow beneficiaries with multiple registrations to only be counted once for selection purposes. Each beneficiary who has a registration submitted on their behalf would be entered into the selection process once, regardless of the number of registrations filed on their behalf. This will remove the advantage of having multiple registrations submitted for a single beneficiary.
The proposed rule would allow prohibit “related” employers from filing multiple H-1B cap registrations for the same individual unless the related petitioners can establish a “legitimate business need” for filing multiple registrations for the same beneficiary.
The proposed rule would also codify USCIS’s ability to deny or revoke H–1B petitions where the underlying registration contained a false attestation or was otherwise invalid. USCIS could require proof of an employment contract, work order, MSA, or other proof of a bona fide job offer to support an H-1B registration and H-1B petition filing.
Cap Gap
The proposed rule would provide an automatic extension of stay and post-completion optional practical training (OPT) until April 1 of the relevant fiscal year (FY) in which the H-1B petition is requested or until the validity start date of the approved H-1B petition, whichever is earlier. This would remove the Cap Gap extension that is currently only valid until September 30.
USCIS Site Visits
The proposed rule would codify USCIS’s authority to conduct site visits. It also seeks to codify the requirement that an H-1B petitioner or any third-party contractor allow access to all sites where labor will be performed to determine compliance with H-1B requirements. What’s more, the rule clarifies that if an employer or third party refuses or fails to fully cooperate with an inspection, USCIS may deny or revoke the relevant beneficiaries’ H-1B visas.
What’s Next?
The USCIS will give the public 60 days from the date of publication to provide input on the proposed changes, and then consider the comments before deciding how to proceed with this proposal. Specifically, DHS has already begun planning the development work in the H-1B electronic registration tool for the new selection process based on the unique beneficiary rather than registration. DHS may seek to finalize the provisions related to the beneficiary-centric registration selection process before other provisions and in time for the FY 2025 cap season.