USCIS Issues Proposed Rule to Modernize H-1B Program

October 25, 2023

The USCIS has published a proposed rule to make enhancements to the H-1B visa program. 

According to an agency news release, the proposed changes would improve the H-1B program by:

• Streamlining eligibility requirements – criteria for specialty occupation positions would be revised 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. Under the new proposal, each unique individual who has a registration submitted on their behalf would be entered into the selection process once, regardless of the number of registrations submitted on their behalf. This would improve the chances that a legitimate registration would be selected by significantly reducing or eliminating the advantage of submitting multiple registrations for the same beneficiary solely to increase the chances of selection.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.

The 60-day public comment period started October 23 (the date the proposed rule was published in the Federal Register). Sometime after the comment period, the USCIS may then finalize the rule. This will likely be in time for the FY 2025 H-1B registration and lottery.