On October 23, 2023, the U.S. Citizenship and Immigration Services (USCIS) will publish a notice of proposed rulemaking in the Federal Register concerning the H-1B visa program which may also impact other nonimmigrant classifications, like F-1, L-1, O, R-1, E-3, TN, etc. While these proposed rules are not yet in effect and are open for public comment, they offer a window into potential future changes that could significantly impact both employers and employees who rely on these visa categories. Let’s delve into some of the key points of this extensive proposal.
Specialty Occupation Definitions and Criteria
- Revised Definition: The DHS proposes to revise the definition and criteria for what constitutes a “specialty occupation.”
- Clarification on “Normally”: The term “normally” within the criteria will be clarified to not mean “always.”
- Range of Degrees: As long as there is a direct relationship between the required degree field(s) and the job duties, range of degrees for the position will be acceptable.
Filing Changes and Deference Policy
– Amended or New Petition: The Department of Homeland Security wants to make it more clear when an amended H-1B petition needs to be filed in response to a change in the employee’s place of employment.
– Deference Policy: The policy will be codified to generally defer to a previous determination if the underlying facts have not changed significantly.
Evidence and Maintenance of Status
– Evidence Requirement: The proposal includes a requirement for evidence of maintenance of status for extensions or amendments, impacting all employment-based nonimmigrant classifications using Form I-129.
Elimination of Itinerary and Amendments
– Eliminating Itinerary Requirement: The DHS proposes to eliminate the itinerary requirement for all H classifications.
– Amending Validity Periods: The proposal will allow petitioners to amend requested validity periods if they expire before adjudication.
Employer Definition and Cap Exemptions
– Modernizing Definitions: The proposal aims to modernize the definition of employers exempt from the annual H-1B visa cap to offer more flexibility for nonprofits and governmental research organizations.
– Extended Duration for F-1 Status: The proposal aims to automatically extend the duration of F-1 status and related employment authorizations until April 1 of the relevant fiscal year.
Addressing Registration Abuse
– Unique Beneficiary Selection: USCIS would select registrations by unique beneficiary rather than by registration, reducing potential for abuse.
Program Integrity and Other Proposals
– The DHS also proposes several other measures, such as codifying its authority to request contracts and conduct site visits, improving the labor condition application (LCA) process, and adding requirements related to the petitioner’s legal presence and amenable service in the United States.
Why These Proposals Matter
These proposed changes aim to modernize and improve the H-1B program’s efficiency, provide greater benefits and flexibilities for both petitioners and beneficiaries, and improve integrity measures. It’s essential for stakeholders to understand these proposed changes as they may impact their current and future H-1B visa applications.
At this point, these are just proposed changes, and the DHS is seeking public comments. If you are a stakeholder, you may want to take this opportunity to voice your concerns or support for these proposed changes.
The proposed rulemaking by the DHS represents a comprehensive overhaul of the H-1B program’s existing system. While we await the final version of these rules, understanding the proposal can help employers and employees alike prepare for what may lie ahead. Therefore, staying informed and consulting with immigration professionals is crucial during this period of potential change.