USCIS Proposed Rule to Amend H-1B Regulations

USCIS Notice of Proposed Rulemaking (NPRM) to amend the H-1B regulations. The NPRM states that the changes will “modernize and improve the efficiency of the H-1B program, add benefits and flexibilities, and improve integrity measures.” Comments will be accepted through 12/22/23. (88 FR 72870, 10/23/23)

In a press release, DHS described the following changes that would be made by the NPRM:

• Streamlining eligibility requirements – criteria for specialty occupation positions would be revised to reduce confusion between the public and adjudicators and to clarify that a position may allow a range of degrees, although there must be a direct relationship between the required degree field(s) and the duties of the position;
• Improving program efficiency – The proposed rule codifies that adjudicators generally should defer to a prior determination when no underlying facts have changed at time of a new filing;
• Providing greater benefits and flexibilities for employers and workers – certain exemptions to the H-1B cap would be expanded for certain nonprofit entities or governmental research organizations as well as beneficiaries who are not directly employed by a qualifying organization. DHS would also extend certain flexibilities for students on an F-1 visa when students are seeking to change their status to H-1B. Additionally, DHS would establish new H-1B eligibility requirements for rising entrepreneurs; and
• Strengthening integrity measures – in addition to changing the selection process, misuse and fraud in the H-1B registration process would be reduced by prohibiting related entities from submitting multiple registrations for the same beneficiary. The rule would also codify USCIS’ authority to conduct site visits and clarify that refusal to comply with site visits may result in denial or revocation of the petition.

DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 214

[CIS No. 2745–23; DHS Docket No. USCIS– 2023–0005]

RIN 1615–AC70

Modernizing H–1B Requirements, Providing Flexibility in the F–1 Program, and Program Improvements Affecting Other Nonimmigrant Workers

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Notice of proposed rulemaking.

VIEW DRAFT FORMS/INSTRUCTIONS AND TABLES OF CHANGES