Last week, DHS proposed changes to the H-1B program to modernize and improve the efficiency of the visa program, add benefits and flexibilities for employers and employees, and improve integrity measures to prevent fraud. All the following are proposed changes, subject to public comment before becoming official. Consider this your guide to the potential new H-1B regulations.
Modernization and Efficiencies
DHS proposes to streamline requirements for the H-1B program by:
- (1) revising the definition and criteria for a “specialty occupation”;
- (2) clarifying that “normally” does not mean “always” within the criteria for a specialty occupation; and
- (3) clarifying that a position may allow a range of degrees, but there must still be a direct relationship between the required degree field(s) and the duties of the position.
The flexibility would allow employers to explore potential employees where hiring based on skills is sensible.
DHS clarifies when an amended or new petition must be filed due to a change in an H-1B worker’s worksite.
DHS also clarifies its deference policy to say that, if there has been no material change in the underlying facts of the H-1B case, then USCIS should defer to a prior decision involving the same parties and underlying facts.
The proposed changes to the H-1B rules specifically require that the H-1B case include evidence of beneficiary’s maintenance of status if they are seeking extension or amendment of stay. This policy would impact all employment-based nonimmigrant classifications that use Form I-129, Petition for Nonimmigrant Worker.
The rule would eliminate the itinerary requirement, which would allow employers to amend requested dates where the validity expires before adjudication.
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Benefits and Flexibilities
DHS proposes to modernize the definition of cap-exempt employers to create more flexibility for nonprofit and governmental research organizations and beneficiaries who are not directly employed by a qualifying organization. The new rules would allow a nonprofit entity or governmental research organization that conducts research as a fundamental activity, but is not primarily engaged in research or where research is not a primary mission, to meet the definition of cap-exempt. Additionally, beneficiaries may qualify for H-1B cap exemption even if they are not directly employed by a qualifying organization, but still provide essential work, even if that work does not necessarily directly further the organization’s essential purpose.
DHS will provide flexibilities, such as automatic extension of F-1 status and any employment authorization until April 1 of the relevant fiscal year, instead of October 1 of the same fiscal year. That way, F-1 students would avoid disruptions in status and ability to work while transitioning to H-1B status.
DHS clarifies the requirements regarding start date on H-1B cap-subject petitions to allow start dates that are after October 1 of the relevant fiscal year.
DHS proposes to change the way USCIS selects lottery registrations. Instead of selecting by registration, USCIS would select registrations by unique beneficiary. This would ensure that each beneficiary would have the same chance of being selected, no matter how many registrations are submitted on their behalf.
DHS clarifies that related entities are prohibited from submitting multiple registrations for the same beneficiary.
The new rules would codify USCIS’s ability to deny H-1B petitions or revoke an approved H-1B petition if the underlying registration contained a false statement or was otherwise invalid.
The proposed rules would improve the integrity of the H-1B program by:
- (1) codifying its authority to request contracts;
- (2) requiring that the petitioner establish that it has an actual, non-speculative position in a specialty occupation available for the beneficiary as of the requested start date;
- (3) ensuring that the labor condition application (LCA) properly supports and corresponds with the petition;
- (4) revising the definition of “United States employer” to require that the petitioner has a bona fide job offer for the beneficiary to work within the United States as of the requested start date; and
- (5) adding a requirement that the petitioner have a legal presence and be amenable to service of process in the United States.
DHS clarifies that beneficiaries who are also business owners may be eligible for H-1B status, while setting reasonable conditions for when the beneficiary owns a controlling interest in the petitioning entity.
The new rules would codify USCIS’s authority to conduct site visits. Refusal to comply with site visits may result in denial or revocation of the petition.
DHS clarifies that if an H-1B worker will be contracted to fill a position at a third party’s organization, then it is the requirements of that third party, and not the petitioner, that are most relevant when determining whether the position is a specialty occupation.
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