DHS Proposes Rule to Modernize H-1B Specialty Occupation Worker Program
On October 20, 2023, the Department of Homeland Security (DHS) proposed a rule to modernize the H-1B specialty occupation worker program. The proposed rule would make a number of changes to the H-1B program, including streamlining eligibility requirements, improving program efficiency, providing greater benefits and flexibilities for employers and workers, and strengthening integrity measures.
The H-1B visa program is a nonimmigrant visa program that allows U.S. employers to temporarily employ foreign workers in specialty occupations, defined by law as occupations that require highly specialized knowledge and a bachelor’s or higher degree in a related specialty, or its equivalent. There is an H-1B cap of 65,000 visas per year, with an additional 20,000 visas available for foreign workers who have earned a master’s degree or higher from a U.S. university. Certain institutions and H-1B petitions are cap-exempt, including H-1B extension petitions and certain change of H-1B employer petitions.
Each year, USCIS runs a random computerized lottery registration for one of these H-1B visa numbers. The proposed rule would change the H-1B registration selection process to ensure that each individual is only entered once, regardless of the number of registrations submitted on their behalf. This would improve the chances of legitimate registrations being selected and give beneficiaries more choice between legitimate job offers.
The proposed rule would also make the following improvements to the H-1B program:
- Streamlining eligibility requirements: The proposed rule would revise the criteria and the regulatory definition for specialty occupation positions, clarify that “normally” does not mean “always” within the specialty occupation criteria, and 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, and no new material information adversely impacting the petitioner’s, applicant’s, or beneficiary’s eligibility.
- Providing greater benefits and flexibilities for employers and workers:
- Expanding certain H-1B cap exemptions, including revising the definition of the current exempt categories of “nonprofit research organization” and “governmental research organization”;
- Changing the phrase “the majority of “to at least half” for H-1B beneficiaries splitting work between cap-exempt and non-cap-exempt entities, and clarifying that the requirement that the beneficiary spend at least half of their work time performing job duties “at” a qualifying institution should not be interpreted to mean the duties need to be physically performed onsite at the qualifying institution;
- Extending certain flexibilities for F-1 students seeking to change status to H-1B, such as extending the automatic extension of duration of status and post-completion optional practical training (OPT) or 24-month extension of the STEM post-completion OPT, as applicable, until April 1st of the relevant fiscal year for which the H-1B petition is requested, provided the H-1B petition is nonfrivolous; and
- Establishing new H-1B eligibility requirements for entrepreneurs, such as that beneficiary-owners must perform specialty occupation duties a majority of the time and may perform non-specialty occupation duties directly related to owning and directing the business but only as incidental duties, and limiting beneficiary-owners entities to initial and first extension validity periods of 18 months each.
- Strengthening integrity measures:
- Changing the H-1B cap lottery registration selection process to select by beneficiary rather than registration, to reduce the potential for abuse;
- Prohibiting related entities from submitting multiple registrations for the same beneficiary;
- Codifying USCIS’s ability to deny or revoke H-1B petitions based on false attestations or invalid registrations;
- Codifying USCIS’s authority to request contracts and require petitioners to establish that they have a bona fide job offer for the beneficiary as of the requested start date;
- Clarifying that beneficiary-owners may be eligible for H-1B status, but setting reasonable conditions for when the beneficiary owns a controlling interest in the petitioning entity;
- Codifying USCIS’s authority to conduct site visits and clarifying that refusal to comply with site visits may result in denial or revocation of the petition; and
- Clarifying that if an H-1B worker will be staffed to a third party, 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.
To learn more about the proposed rule, please visit: https://www.uscis.gov/newsroom/news-releases/dhs-issues-proposed-rule-to-modernize-the-h-1b-specialty-occupation-worker-program