Practice Alert: DHS Proposes to Modernize and Improve the H-1B Program

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DHS has requested public review of a Notice of Proposed Rulemaking, Modernizing H–1B Requirements, Providing Flexibility in the F–1 Program, and Program Improvements Affecting Other Nonimmigrant Workers, 88 Fed. Reg. 72870 (proposed October 23, 2023) (to be codified at 88 C.F.R.  pt. 214). The proposed rule may go into effect as early as the Fiscal Year 2025 cap season, but would impact other nonimmigrant classifications as well, including: H–2, H–3, F–1, L–1, O, P, Q–1, R–1, E–3, and TN.

The proposed regulations aim to streamline eligibility requirements for the H1B process, improve H1B program efficiency, provide greater benefits and flexibility for employers and workers, and strengthen the integration of the H1B program.

Noteworthy proposed changes include the following:

  • Revising various regulatory definitions;
  • Requiring fields of study to directly relate to the duties and responsibilities of particular positions applied for;
  • Clarifying when an amended or new petition must be filed due to a change in place of employment;
  • Codifying a deference policy for H-1B extension cases requiring adjudicators to defer to prior determinations involving the same parties and underlying facts;
  • Requiring evidence of Maintenance of Status for extensions and amendments of stay;
  • Eliminating the itinerary requirement;
  • Allowing petitioners to amend requested validity periods where the validity expires before adjudication is completed;
  • Broadening requirements for beneficiaries to qualify for H-1B Cap exemption;
  • Extending the duration of F-1 status and any OPT or OPT extension employment authorization to April 1 of the relevant Fiscal Year to avoid disruptions in the F-1 to H-1B change of status process;
  • Changing the way USCIS selects registrations to select by unique beneficiary, ensuring that each beneficiary would have the same chance of being selected, regardless of how many registrations are submitted on their behalf;
  • Prohibiting related entities from submitting multiple registrations for the same beneficiary;
  • Codifying USCIS’s ability to deny or revoke a petition where the underlying registration contained a false attestation or was otherwise invalid;
  • Codifying USCIS’s authority to request contracts;
  • Requiring the Petitioner to have legal presence in the US and be amenable to service of process in the U.S.;
  • Allowing beneficiary-owners to be eligible for H-1B status and setting conditions for beneficiaries who own a controlling interest in petitioning entities;
  • Codifying USCIS’s authority to conduct site visits, where refusal may result in denial or revocation of a petition; and
  • Clarifying that in cases where a beneficiary will be staffed to a third party entity, the requirements of the third party, not the petitioner, are the most relevant when determining whether the position is a specialty occupation.

In addition to the above, USCIS also requests Preliminary Public Input for “ideas that would curb or eliminate the possibility that petitioners may have speculative job opportunities as of the requested start date and delay admission of H–1B beneficiaries until the petitioner has secured work for the H–1B beneficiary, including two potential approaches DHS is considering for future action;” and “ways to provide H–1B and other Form I–129 beneficiaries with notice of USCIS actions taken on petitions filed on their behalf.”

Written comments are due on or before December 22, 2023 through The Proposed Rule is identified as DHS Docket No. USCIS–2023–0005. If you cannot submit your comment by using the site, please contact Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, by telephone at (240) 721–3000 for alternate instructions.

For further information contact: Charles L. Nimick, Chief, Business and Foreign Workers Division, 5900 Capital Gateway Drive, Camp Springs, MD 20746; Phone: +1 (240) 721–3000.

Update: Office of Management and Budget Completes Final Review of H-1B Modernization Rule

January 26, 2024

The comment period closed on December 22, 2024, with more than 1,300 comments and has passed to the Office of Management & Budget (OMB) for review. The text of the rule will be published in the Federal Register once the OMB completes its review. While the contents of the final rule are unknown, it will likely include changes to the H-CAP registration and selection process, such as measures to prohibit multiple H-CAP registrations per beneficiary. The final rule may also extend the duration of F-1 status and any OPT or OPT extension employment authorization, in support of the Biden Administration’s directive to attract and retain critical technology talent.

FY2025 H-CAP registration will begin in spring 2024, so any changes to the H-CAP process must be published before that time. H-CAP 2025 will also feature an online platform for organizational accounts

Written by Brittany Barnett, Law Clerk.

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