Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvement Affecting Other Nonimmigrant Workers

October 20, 2023
The Department of Homeland Security is proposing a new rule called "Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvement Affecting Other Nonimmigrant Workers." This new rule will be officially published in the Federal Register on October 23rd, 2023. Some key items in the proposed rule include: DHS proposes to streamline requirements for the H-1B program by: (1) revising the regulatory 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, although there must be a direct relationship between the required degree field(s) and the duties of the position.  DHS is proposing eliminating the H Programs’ itinerary requirement. DHS also proposes to clarify when an amended or new petition must be filed due to a change in an H-1B worker’s place of employment to be consistent with current policy guidance. Additionally, DHS proposes to codify and clarify its deference policy to state that, if there has been no material change in the underlying facts, adjudicators generally should defer to a prior determination involving the same parties and underlying facts. DHS also proposes to update the regulations to expressly require that evidence of maintenance of status must be included with the petition if a beneficiary is seeking an extension or amendment of stay. DHS also proposes to provide flexibilities, such as automatically extending the duration of F-1 status, and any employment authorization granted under 8 CFR 274a.12(c)(3)(i)(B) or (C), until April 1 of the relevant fiscal year, rather than October 1 of the same fiscal year, to avoid disruptions in lawful status and employment authorization for F-1 students changing their status to H-1B. Additionally, DHS is proposing to clarify the requirements regarding the requested employment start date on H-1B cap-subject petitions to permit filing with requested start dates that are after October 1 of the relevant fiscal year, consistent with current USCIS policy. USCIS would select registrations by unique beneficiary, thereby reducing the potential for gaming the process to increase chances for selection and helping ensure that each beneficiary would have the same chance of being selected, regardless of how many registrations are submitted on their behalf. DHS also proposes to clarify that related entities are prohibited from submitting multiple registrations for the same beneficiary. DHS additionally proposes to clarify that the beneficiary-owners may be eligible for H-1B status, while setting reasonable conditions for when the beneficiary owns a controlling interest in the petitioning entity. DHS proposes 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” by codifying the existing requirement that the petitioner has a bona fide job offer for the beneficiary to work within the United States as of the requested start date, consistent with current DHS policy; and (5) adding a requirement that the petitioner have a legal presence and be amenable to service of process in the United States. DHS also proposes to codify USCIS’s authority to conduct site visits and clarify that refusal to comply with site visits may result in denial or revocation of the petition. Additionally, DHS proposes to clarify that if an H-1B worker will be staffed to a third party, meaning they will be contracted to fill a position in the third party’s organization, 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.  

Related News

Over 200,000 H-1B visa workers could lose legal status by June Concerns arise about “a catastrophe at a human level and an economic level” if visa issues aren’t addressed.

Manasi Vasavada has less than three weeks left before she loses her legal right to be in the country. The dental practice in Passaic County, New Jersey, where Vasavada, 31, has worked for almost two years closed its doors in mid-March due to Covid-19. She has been on an unpaid leave of absence ever since. […]

Remote Work Verification Allowed for New Hires Under DHS Rule

Employers will get a permanent option for verifying employment eligibility remotely beginning Aug. 1 under new Homeland Security Department regulations. The rule was released Friday ahead of the Aug. 30 expiration of temporary, Covid-19 era flexibility for employment verification. Companies that have used that option for the past three years have scrambled in recent weeks to review […]

USCIS partners with Justice Department and Secures First Denaturalization As a Result of Operation Janus

USCIS partners with Justice Department and Secures First Denaturalization As a Result of Operation Janus Release Date: Jan. 10, 2018 On January 5, Judge Stanley R. Chesler of the U.S. District Court for the District of New Jersey entered an order revoking the naturalized U.S. citizenship of Baljinder Singh aka Davinder Singh, and canceling his […]