On September 19, the U.S. Department of Homeland Security (DHS) proposed making changes to the H-1B program, an objective the agency has pursued for several years through the rulemaking process. Recently, DHS has submitted a proposed rule to the U.S. Office of Management and Budget (OMB) entitled, "Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program." While the text of the proposed rule has not been made public, the proposed rule would make changes to the H-1B and F-1 programs that employers who employ H-1B workers and F-1 students may find important.
A summary of the proposed rule has been made available to the public. According to this summary, the proposed rule would do the following:
- Revises the definition of the term "employer-employee relationship" in order to provide flexibility for start-up entrepreneurs.
- Implements new guidelines for H-1B site visits, especially in connection with petitions filed by H-1B dependent employers.
- Provides flexibility with respect to the start date of H-1B employment.
- Addresses F-1 to H-1B change of status cap-gap issues.
- Strengthens the H-1B registration process to eliminate fraud and misuse.
- Clarifies when an amended or new petition must be filed if there are material changes in the terms and conditions of the H-1B employment.
Once OMB completes its review, the proposed rule will be published in the Federal Register. There will be a notice and comment period of 30, 45, or 60 days in which the public may submit comments to OMB. After the comments are submitted, the government will review the public comments. Publication of the final rule may be delayed depending on how many comments are received, and whether revisions to the proposed rule need to be made based on these comments.
While DHS has indicated it would like the new rule to be effective by the end of 2023, the effective date may also be dependent on whether new forms are required and whether changes to the USCIS Policy Manual will need to be drafted. In addition, there could be legal challenges to the proposed rule in federal court. Given this, it is anticipated the final rule would not likely take effect until mid-2024. Fakhoury Global Immigration will provide updates to the rulemaking process as information becomes available.
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