The U.S. Dept. of Homeland Security (DHS) has issued a proposed rule which, when effective, will amend certain regulations governing H–1B workers. The announced purpose of the amendment is to “modernize and improve the efficiency of the H–1B program, add benefits and flexibilities, and improve integrity measures.” Among its most important provisions, the regulations take aim at the growing abuse of the H-1B lottery system by unscrupulous schemers seeking to profit by “gaming the system.”
The published rule in the Federal Register – entitled Modernizing H–1B Requirements, Providing Flexibility in the F–1 Program, and Program Improvements Affecting Other Nonimmigrant Workers – is 94 pages long, and includes a wide range of provisions, many of which are intended to align regulations with existing policies and practices. Though primarily impacting H-1B workers, the proposed regulation also includes provisions pertaining to international students in F-1 status, within the Optional Practical Training portion of their studies. Some of the key amendments include:
- Educational in a Related Discipline: Current H-1B regulations require an employee to have a minimum of a bachelor’s degree in a “specific specialty”. The amended regulations clarify that “specific specialty” may include a range of degrees, as long as they have a direct relationship to the job duties.
- Amended Petition for Change of Worksite: If an employee is moving to a new worksite, the employer will be required to file the amended Petition before the employee may begin working at the new worksite. However, an amended Petition is not required if the employee is performing services at a different worksite under the “short term placement” rules.
- Deference to Previous Approvals: As expressed in a Memo issued in 2021, in situations where an employer is requesting an extension of H-1B or other status for an employee, and if there has been no material change in the underlying facts, adjudicators are directed to defer to the prior determination.
- H-1B’s for Entrepreneurs: H-1B beneficiaries who own or have a controlling interest in the company that is sponsoring them will, under some circumstances, be eligible for H-1B status, but only where there is a cognizable employer-employee relationship.
- Third Party Worksite: Current H-1B regulations require adjudicators to look at a Petitioner’s requirements to determine if a position is a “specialty occupation,” even when the employee will work at a third-party worksite. The amended regulations clarify that adjudicators can assess whether a position is a “specialty occupation” based on the requirements of the third-party, rather than the Petitioner.
- Fixing the H-1B Lottery: The current system of registering for the H-1B lottery opened the door to abuse by unscrupulous, often off-shore operators, who, for a hefty fee, would file multiple registrations through different legal entities, even when there was no work assignment available. The amended rules are designed to prevent this by no longer allowing related entities to file multiple registrations for the same Beneficiary. Additional provisions aimed at the problem include: 1) a requirement that Petitioners establish the existence of a non-speculative position, 2) revising the definition of “U.S. employer” to require proof that the petitioner has a bona fide job offer for the beneficiary in the U.S. and 3) requiring that Petitioners have a legal presence and be amenable to service of legal process in the U.S.
- H-1B Start Date: Current regulations require cap-subject Petitions to include a start date of October 1 of the relevant fiscal year. The amended regulations clarify that cap-subject petitions may request a start date on or after October 1.
- H-1B Cap-Gap Extension: Current regulations provide F-1 students with a “cap-gap” extension only through September 30 of the same calendar year. The amended regs will extend the “cap-gap” OPT so that students can remain employed while waiting for the adjudication of a Petition..
- Broadened Definition for Cap-Exempt Research Organizations: The amended regulations will allow nonprofit entities or governmental research organizations conducting research as a “fundamental activity” but not as a “primary activity” to file as a cap-exempt Petitioner.
- Site Visits: Fraud Detection and National Security (FDNS) agents are now authorized to make unannounced site visits to ensure that H-1B employers are complying with all immigration regulations. The amended regulations would clarify that refusal to comply with site visits may result in denial or revocation of the petition.
The final rule is expected to be published in late December or early January. The implementation of the rule is welcomed by the business immigration community. The anti-fraud measures will significantly reduce the number of registrations under the cap, thereby increasing opportunities for H-1B-eligible candidates and their U.S. employers to be selected in the 2025 H-1B lottery, this coming March 2024.
If you have questions about any of the above information, please contact us at 610-964-6100 or [email protected].