USCIS PROPOSES NEW H-1B RULES

On October 20, 2023, USCIS announced that it would propose new rules for the H-1B program. The proposed new rules are detailed in the Federal Register published on October 23, 2023.

While many of the proposed changes clarify or codify current adjudicative trends, other changes impose new restrictions on H-1B eligibility.

Clarifications and Codifications

• Deference to Previous USCIS Decisions

The proposed rule codifies that USCIS officers should defer to prior approvals when no underlying facts have changed at time of a new filing.

• Amended H-1B Petitions

Currently, practitioners must judge when to file amended petitions based on archived USCIS policy guidance and DOL guidance and regulation. The proposed new rule will clarify that an amended or new petition must be filed pursuant to any change in work location that requires a new LCA.

• Relaxed Requirements for CAP-exemptions

The new rules would require that nonprofit and governmental research organizations merely conduct research as a fundamental activity, which is a looser interpretation that the previous requirement that these entities be primarily engaged in research.

Additionally, the new rules would allow 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.

• Extension of the CAP-gap period

Currently, the CAP-gap is an automatic extension of status for F-1 students whose F-1 validity period is set to expire before H-1B petitions go into effect on October 1. This poses a particular problem for H-1B CAP beneficiaries who are chosen in second or third rounds of the H-1B CAP, who cannot begin work on October 1. The new rules would extend the CAP-gap period, which would extend both F-1 students’ statuses and work authorization, through April 1 of the year following H-1B petition submission. Such an extension would afford CAP-gap protection for F-1 students whose H-1B petitions are approved with start dates past October 1.

• CAP Lottery Selection

Under the new rule, related entities would be prohibited from submitting multiple registrations for the same beneficiary.

The rule would also select individual H-1B lottery beneficiaries, rather than registrations. Currently, a beneficiary can conceivably be selected multiple times if he or she has multiple registrations submitted on his or her behalf, resulting in low selection rates for most H-1B CAP lottery beneficiaries. The new rule would allow each beneficiary to be selected only once; if a beneficiary holds multiple registrations, each registering company would be notified of selection and provided an opportunity to file a legitimate H-1B petition on the beneficiary’s behalf.

Burdensome Requirements

• Contract Requests for Third-Party Placements

The new rule would grant USCIS authority to request contracts, work orders, or other such evidence to document bona fide job offers. The new rule would require such evidence show the contractual relationship between all parties, the terms and conditions of the beneficiary's work, and the minimum educational requirements to perform the duties. 

Currently, the regulations do not state this authority.

Specialty Occupation Definition

The new rule imposes a new requirement for qualification as a “Specialty Occupation” that there exist a direct relationship between the required degree field(s) for the position and the duties of the position. The new rule iterates that a general degree is insufficient to qualify. 

USCIS will now accept comments from the public on the proposed new rules for 60 days before a final rule may be published.