On Monday, October 23, 2023, the U.S. Citizenship and Immigration Services (USCIS) published a Notice of Proposed Rulemaking (NPRM) in the Federal Register. The proposal aims to formalize existing rules while introducing substantial modifications to the H-1B Specialty Occupation Worker Program. The U.S. Department of Homeland Security (DHS) previously solicited input from all stakeholders regarding the Proposed Rule. After considering all third-party comments on the proposed rule, the final rule was published on February 2, 2024, regarding the H-1B online registration. However, other sections of the proposal will have their final rule released separately. The following is a review of the content in the proposed rule and what to expect in the upcoming subsequent rulings, as well as what has already been implemented.
1.DHS Shifts the Current Registrant-based Selection System to a More Equitable, Beneficiary-centric Approach that Ensures Equal Chance of Selection for Each Unique and Eligible Beneficiary
DHS proposed significant changes to address misuse and fraud in the H-1B cap registration process. This involved transitioning from the current system, where selections are made based on employer registrants, to a system that makes selections based on unique beneficiaries, irrespective of the number of registrations submitted for a beneficiary. This beneficiary-centric approach seeks to discourage the submission of multiple registrations for the same beneficiary solely to enhance selection chances for the specific beneficiary and will thus provide beneficiaries with fewer job offers (i.e., fewer employer registrations) an equal chance of selection against beneficiaries with multiple job offers (i.e., multiple employer registrations).
Previously, the more registrations submitted by different employers for a specific beneficiary, the higher the chances of selection the specific beneficiary had. However, this advantage is eliminated under the new proposed rule. The new selection process will ensure an equal chance for all unique beneficiaries. The shift in the selection process for H-1B status ultimately fosters a more equitable and impartial system. By allotting each unique beneficiary an equal opportunity for selection, irrespective of the number of registrations they possess, the new approach promotes fairness and levels the playing field for all applicants.
In line with USCIS’s recognition of misuse and fraud within the existing H-1B program selection system, where the probability of selection increases with the number of registrations for a unique beneficiary, we concur DHS’s initiatives to curb system exploitation and preserve the integrity of immigration procedures. The shift to a beneficiary-centric approach will ensure a more balanced and merit-based selection process, aligning with USCIS’s principles of fairness and equal opportunity for all eligible candidates.
This regulation will be effective on March 4, 2024, representing a substantial positive change in the H-1B registration process. By adopting a beneficiary-centric approach, the rule will drastically improve fairness and transparency in allocating H-1B slots. This shift will effectively eliminate potential advantages derived from multiple registrations for the same beneficiary, thus promoting a more equitable and merit-based system. With each unique beneficiary being entered into the selection process only once, regardless of the number of registrations submitted on their behalf, the rule stands to significantly enhance the integrity of the H-1B program.
2. Related entities would be prohibited from submitting multiple registrations for the same beneficiary to prevent abuse within the H-1B registration process.
DHS proposes to prohibit related entities from submitting multiple registrations for the same beneficiary, further aligning with efforts to maintain the integrity of the registration system. DHS’s concerns about the increasing trend of beneficiaries with numerous registrations underscore the necessity for implementing cautionary measures to prevent system abuse and uphold a fair and transparent selection process. By restricting related entities from submitting multiple registrations, the proposal aims to eliminate potential advantages gained through excessive registrations for a single beneficiary. This measure supports USCIS’s broader goal of fostering fairness and transparency within the H-1B program, which is crucial for both petitioners (employers) and beneficiaries.
3. DHS Proposes to Automatically Extend F-1 (Student) Status and Related Employment Authorization Until April 1 of the Fiscal Year, Offering Continuity for F-1 Students Changing Their Status to H-1B
DHS is proposing a significant amendment to the cap-gap provisions for F-1 students transitioning to H-1B status by extending the automatic cap-gap period to April 1 of the fiscal year for which the H-1B petition is filed, instead of the current cut-off date of October 1. This extension is designed to address potential disruptions in employment authorization that F-1 students often face due to delays in the adjudication of their H-1B petitions. By extending the cap-gap period, this proposed change offers F-1 students with greater continuity in their employment authorization and underlying F-1 status, which will allow them to work seamlessly and have a valid status until their H-1B petition is adjudicated. DHS’s goal is to mitigate the impact of processing delays on these students and their employers, ensuring a smoother transition for those changing their status from F-1 to H-1B.
The proposed extension of the automatic cap-gap period for F-1 students transitioning to H-1B status until April 1 of the fiscal year for which the H-1B petition is filed is a significant improvement in mitigating complications that may arise in the process of changing status from F-1 to H-1B. If implemented, the extension will allow F-1 students seeking H-1B status to maintain their employment authorization until the adjudication of their H-1B petitions is complete. This would adequately address concerns related to potential disruptions in employment that arise when the current cap-gap period ends on October 1, especially in cases where H-1B petitions are not adjudicated by that date, as well as providing an underlying status beyond October 1 for F-1 students awaiting adjudication of their petitions. Moreover, DHS’s proposal aligns with operational realities and recognizes the challenges faced by USCIS in completing the adjudication of all H-1B cap-subject petitions by October 1 due to the high volume of filings. By extending the cap-gap period, USCIS aims to adjudicate a significant majority of these petitions by the new deadline of April 1, reducing the likelihood of employment disruptions for F-1 students and providing more predictability for both individuals and employers.
4. DHS Proposes to Redefine the Criteria for a Specialty Occupation, Clarifying That the Term “Normally” Does Not Mean “Always”
Currently, the regulatory criteria for a “specialty occupation” state that a bachelor’s degree is “normally” required for entry into the occupation. DHS seeks to define “normally” more explicitly, emphasizing that it means “conforming to a type, standard, or regular pattern” and is characterized by what is considered “usual,” “typical,” “common,” or “routine.” The proposal specifies that “normally” does not mean “always,” and the petitioner is not obligated to prove that a bachelor’s degree in a specific specialty is an absolute and unvarying prerequisite for entry into the occupation in the United States. USCIS’s rationale is that some individuals may be hired without a bachelor’s degree, but this does not negate the degree being “normally” required. The codification of USCIS’s current practice in this regard is intended to bring consistency and transparency to adjudication standards, offering H-1B petitioners a clearer understanding of the criteria. This increased certainty would prove beneficial for both petitioners and employers and thus foster a more predictable and streamlined application process for the H-1B program.
DHS’s emphasis that “normally” does not mean “always” is particularly significant, acknowledging the dynamic nature of certain occupations where individuals may be hired without a bachelor’s degree. This recognition aligns with the evolving landscape of job requirements, especially in fields like technology where skills and experience often hold considerable weight. The proposal aims to relieve petitioners from the burden of proving an absolute and unvarying requirement for a bachelor’s degree, thereby providing a more flexible and realistic approach to evaluating eligibility for H-1B visas. Additionally, the proposed codification of existing USCIS practice in interpretation of the term “normally” in the regulatory criteria for a specialty occupation would represent a positive development for H-1B petitioners and employers. The current lack of a precise definition and consistent interpretation has led to ambiguity within H-1B petitions. Thus, by explicitly defining “normally” to mean “conforming to a type, standard, or regular pattern” and standardizing the term by what is considered “usual,” “typical,” “common,” or “routine,” the proposal adds crucial clarity to H-1B eligibility requirements.
5.DHS’s Proposal to Modernize the Definition of Employers Exempt from Annual H-1B Visa Limits Will Substantially Benefit Eligible Beneficiaries and Nonprofit and Governmental Research Organizations
DHS proposes substantial revisions to the requirements for H-1B cap exemption, focusing on cases where the beneficiary is not directly employed by a qualifying institution, organization, or entity. Additionally, DHS aims to redefine the criteria for “nonprofit research organizations” and “governmental research organizations” to make these regulations less restrictive, align them with contemporary employment relationships, and provide flexibility for petitioners.
Currently, the annual regular cap for H-1B visas is set at 65,000 along with an additional 20,000 under the advanced degree exemption (as known as the “master’s cap”). However, there are exemptions for certain workers employed at qualifying institutions. The existing regulations outline cap exemption based on direct employment or the majority of work time spent furthering the essential mission of the qualifying entity. The proposed changes involve replacing “the majority of” with “at least half” and eliminating the requirement that duties must “directly and predominantly further” the essential purpose of the entity. The proposal also addresses the definitions of “nonprofit entity,” “nonprofit research organization,” and “governmental research organization,” recognizing their roles in basic or applied research even where such research is not the primary mission of such institutions. These proposed adjustments reflect DHS’s commitment to modernize and refine the H-1B program, ensuring that it remains equitable, efficient, and capable of accommodating the evolving needs of both petitioners and beneficiaries in highly specialized employment opportunities.
a. Replacing criteria terminology such as “the majority of” with “at least half” would allow beneficiaries to split their work time more evenly.
DHS is seeking to enhance clarity, simplicity, and modernization in determining eligibility for H-1B cap exemption, particularly when the beneficiary is not directly employed by a qualifying institution, organization, or entity. By redefining key terms and updating the language in the regulations, the proposed changes intend to offer greater flexibility to petitioners, aligning with the contemporary landscape of employment relationships. The existing regulations outline cap exemption based on direct employment or the majority of work time spent furthering the essential mission of the qualifying entity. The proposed changes include replacing “the majority of” with “at least half,” allowing beneficiaries to split their work time more evenly. Furthermore, duties would no longer be required to “directly and predominantly further” but should “directly further an activity” supporting a fundamental purpose of the qualifying entity. The burden of proving a nexus between duties and the essential purpose of the entity would be eliminated. This proposal reflects DHS’s effort to increase flexibility and provide clarity to stakeholders in the H-1B program.
b. Replacing the current requirement that a nonprofit or governmental research organization be “primarily engaged” in basic or applied research with the standard of being engaged in research as a “fundamental activity” would allow more organizations to qualify for H-1B cap exemption.
DHS also proposes to replace the current requirement that a nonprofit research organization or governmental research organization be “primarily engaged” in basic or applied research with the standard of being engaged in research as a “fundamental activity.” This change is designed to bring more clarity and predictability to decision-making for both adjudicators and stakeholders within the H-1B program. The shift from “primarily engaged” to “fundamental activity” acknowledges the limitations and inconsistencies associated with the existing language, which necessitates demonstrating that research is the principal or foremost activity. This change would pose more clarity and predictability to decision-making for adjudicators and stakeholders. Recognizing the diverse nature of nonprofit organizations involved in various crucial activities, it allows them to qualify for H-1B cap exemption even if research is one of several fundamental activities rather than the primary mission. This modernization reflects an understanding of the evolving landscape of nonprofit and governmental research organizations, offering a more flexible and realistic criterion for eligibility.
6. DHS’s Proposed Reforms to the H-1B Program for Beneficiary-Owned Businesses Aim to Remove Historical Impediments and Encourage Entrepreneurship by Providing Clear Guidelines and Flexibility
The proposed regulations seek to codify a petitioner’s ability to qualify as a U.S. employer even when the beneficiary owns a controlling interest in the petitioner’s business, addressing historical impediments for beneficiary-owned businesses participating in the H-1B program. The changes aim to permit more entrepreneurs and innovators to utilize the H-1B program, fostering innovation, job creation, and new opportunities. The proposed conditions, applicable when the beneficiary has a controlling interest, include allowing the beneficiary to perform non-specialty occupation duties directly related to owning and directing the business, provided that a majority of their time is spent on specialty occupation duties of their proposed H-1B position. DHS’s approach would provide increased flexibility for beneficiary-owners while maintaining the requirement that they come temporarily to the U.S. for specialty occupation services.
The proposed regulations are beneficial for several reasons, as they aim to address historical obstacles faced by beneficiary-owned businesses in participating in the H-1B program by clarifying a petitioner’s ability to qualify as a U.S. employer, even when the beneficiary owns a controlling interest. One improvement with the change is the recognition that as an owner, a beneficiary may perform tasks associated with directly owning the business, but so long as the beneficiary primarily performs duties of the proposed specialty occupation position, performance of some tasks outside the specialty occupation is permitted. The proposal conditions would provide room for beneficiary-owners to manage their businesses effectively while upholding the requirement that they come to the U.S. temporarily for specialty occupation services.
7. DHS Would Have the Authority to Conduct Site Visits, and Refusal to Comply May Result in Denial or Revocation of the Petition
DHS is proposing regulatory amendments to enhance its authority and procedures for inspecting, evaluating, and verifying compliance in the H-1B program, with a focus on on-site visits and potential consequences for non-cooperation. DHS seeks to codify its existing authority and clarify the scope of inspections, primarily seeking to strengthen the integrity of the immigration system and the H-1B program by providing clear guidelines and incentives for petitioners to fully cooperate with inspections. DHS highlights the importance of compliance reviews, particularly through site visits, in maintaining program integrity and detecting potential fraud or noncompliance.The proposed regulations specify that inspections may include on-site visits, interviews, record reviews, and other measures to verify facts related to H–1B petitions. The inspections can take place at various locations, including the petitioner’s facilities, beneficiary’s work locations, and third-party worksites.
The proposed rules also address instances of noncooperation, emphasizing the petitioner’s ongoing burden of proof and responsibility to provide accurate information. Lack of cooperation during inspections may result in denial or revocation of H-1B petitions, ultimately affecting workers at the inspected locations. The proposed regulations provide a framework for assessing noncooperation, including situations where petitioners or third parties refuse entry, fail to provide requested information, or do not respond within specified timeframes.
8. Comments and Suggestions Regarding DHS’s Proposed Rule
As discussed above, DHS proposes to implement substantial regulations to the H-1B Specialty Occupation Worker Program in effort to improve efficiency, add benefits and flexibilities, and improve integrity measures. Although the proposed rule is well-intentioned, we have observed potential impediments within the rulemaking, specifically regarding the treatment of general degrees and the lack of standardizations for site visits. It is essential to ensure that the rule strikes a balance between its objectives and the practical implications for all stakeholders involved.
a. DHS should recognize specialized concentrations and relevant coursework within general degrees for specialty occupations.
While we support the provision that allows for a broader range of degrees for specialty occupations, we are concerned with the criteria regarding business administration degrees. However, we hope that DHS avoids treating a business administration degree (e.g., MBA) as insufficient for qualifying positions. Our concern lies in the potential overreach of categorizing certain degrees without considering concentration, specialization, or specific coursework that a student completed under their degree program’s studies. Therefore, we underscore the importance of acknowledging the potential depth within degrees such as business administration degrees, particularly when considering specialized concentrations and relevant coursework. For example, an MBA with a concentration in finance involves highly specialized coursework specifically tailored to the financial domain. This emphasizes that even within degrees perceived to be “general” like business administration, concentrations with specialized coursework should be deemed as directly related to and qualifying for a specialty occupation. This approach would ensure that the intricate and specialized nature of certain concentrations, as well as specialized coursework that have been completed, within degrees perceived as “general” are recognized and valued in the evaluation process.
We hope that DHS acknowledges certain positions may legitimately accept and require the highly specialized knowledge that can be attained from “general” degrees, as long as each qualifying degree or specialized knowledge field is directly relevant to the specific job requirements. This approach would ensure fairness and flexibility in recognizing diverse educational backgrounds while maintaining a focus on the essential relationship between the degree field and the position.
b. DHS should elaborate on its expectations for site visits and standardize its procedure for discretionary actions.
We respectfully propose that DHS establish clear and standardized expectations for site visits under the Proposed Rule. It is essential to define the specific criteria and procedures that would guide officers during site visits, reducing ambiguity and ensuring consistency in enforcement. Additionally, we recommend establishing a designated time frame between the site visit and any subsequent discretionary actions, such as revocation or denial of petitions. This would contribute to procedural fairness and provide stakeholders with a predictable timeline for potential outcomes. Furthermore, we suggest that any revocations resulting from site visits should be subject to appeal, and there should be a defined standard of proof for the findings during site visits.
Addressing these concerns would enhance transparency, accountability, and due process in the implementation of site visit procedures under the Proposed Rule. We emphasize the importance of collecting comprehensive information during site visits, including the full name and title of the individuals interviewed, to ensure accurate and reliable records for any future proceedings.
DHS’s proactive stance on the specifications outlined in the Proposed Rule resonates with Meng Law Group PC’s dedication to fostering a more streamlined, just, and adaptable immigration system that benefits both employers and beneficiaries. We applaud the advancements in transparency and fairness within the H-1B program and endorse actions that aim to create a more equitable and effective system. We believe that a well-structured and transparent immigration system is essential to meeting the needs of both employers and skilled professionals, contributing to the overall success and vitality of the U.S. workforce.
We greatly appreciate DHS’s efforts in modernizing the H-1B Specialty Occupation Worker Program that seeks to streamline requirements, enhance program efficiency, provide greater benefits and flexibilities, and maintain integrity measures. To reiterate, while some of the proposals have already been implemented, the remaining are solely proposed regulations, and they have no immediate effect on U.S. immigration law at the time of this article’s publishing. Additionally, this summary of the rulemaking mainly covers the proposed changes that would directly impact H-1B registrants; it does not cover every change to the H-1B program. Additional updates and details will be posted on our website.
Homeland Security Department. (2023, October 23). Modernizing H-1B Requirements,
Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers. Federal Register: The Daily Journal of the United States Government. https://www.federalregister.gov/d/2023-23381
U.S. Citizenship and Immigration Services. (2023a, July 31). H-1B Electronic Registration
U.S. Citizenship and Immigration Services. (2023b, October 20). DHS issues proposed rule to
modernize the H-1B Specialty Occupation Worker Program. USCIS. https://www.uscis.gov/newsroom/news-releases/dhs-issues-proposed-rule-to-modernize-the-h-1b-specialty-occupation-worker-program
Homeland Security Department. (2023, February 2). Improving the H-1B Registration Selection
Process and Program Integrity. Federal Register: The Daily Journal of the United Sates Government. https://www.federalregister.gov/d/2024-01770
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