8 November 2023

Breaking News: U.S. Department Of Homeland Security Announces NPRM For Update To H-1B Regulations (Summary Included)

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At Brown Immigration Law, we strive to be your company's partner in growth and innovation, on a global scale. We continue our commitment to demystifying the complex immigration laws of the United States and Canada to provide efficient and effective immigration and global mobility support. Please find the most recent breaking business immigration news below.


U.S. Department of Homeland Security Announces NPRM for Update to H-1B Regulations (Summary Included)

On October 23, 2023, the U.S. Department of Homeland Security (DHS) announced a notice of proposed rulemaking with significant updates for the H-1B program. Titled "Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers", DHS proposed that these updates will further streamline the H-1B program and improve both efficiency and integrity. Some of the key proposed updates include:

  • Revised definition for Specialty Occupation
    • NPRM clarifies that "normally" does not mean always
    • NPRM clarifies that a position may allow a range of degrees required for entry into the specialty occupation, yet there must be a direct relationship between the required degree field(s) and the position
  • NPRM seeks to update the criteria for H-1B cap exemption, permitting qualification when the Beneficiary is not directly employed by a qualifying organization, but still provides essential work, even if their duties do not necessarily directly further the organization's essential purpose.
  • NPRM seeks to automatically extend 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 (referring to "cap gap")
  • NPRM seeks to add flexibility to the start date of cap-subject initial H-1B petitions (no longer strict requirement of October 1)
  • NPRM seeks to change the way the Service selects H-1B registrations (with a goal of reducing H-1B registration abuse):
    • USCIS would select registrations by unique beneficiary regardless of how many registrations are submitting on the beneficiary's behalf
    • Issue clarity that related entities are prohibited from submitting multiple registrations for the same beneficiary
    • Codify the Service's ability to deny an H-1B cap case if the registration contained a false or invalid representation
  • NPRM seeks to improve the H-1B program integrity through:
    • Codifying USCIS's authority to request contracts
    • Requiring Petitioner to establish an actual and non-speculative offer of employment for work in the United States
    • Ensuring the LCA is properly submitted
    • Ensuring that Petitioner has a legal presence in the United States
  • NPRM proposes to clarify that 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.
  • NPRM 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

The NPRM proposes numerous other confirmations, codifications to current policy, and other updates, including: clarifying the rules for an H-1B amendment; codifying the Service's policy of deferring to previous approvals; codifying the requirement of showing maintenance of status when filing an H-1B, and other updates. We welcome commonsense updates to the H-1B programs and the Service's intention to enhance equity in the H-1B registration system. At the same time, we hope the proposed updates to the H-1B program do not inhibit or restrain Petitioners from obtaining H-1Bs for specialty workers. For example, yesterday, President Biden issued an executive order seeking to add further flexibility for immigrants and nonimmigrants working with Artificial Intelligence, seeking to "moderniz[e] and streamlin[e] visa criteria" for those working in this critical area. We hope that these regulations remain consistent in efforts to streamline, rather than to restrict, immigration and global mobility.

Looking forward, the 60-day comment period for the NPRM began upon its publication, lasting October 23, 2023 – December 22, 2023. We encourage any interested parties to comment. After, DHS will review all comments and conduct their analysis, deciding whether to proceed with the rulemaking process or update the proposed changes to the program. Given that the H-1B Registration window will open again in early March, we expect there is a vested interest in moving some or all of these suggested reforms forward before long. We will continue to monitor the updates to the H-1B program and report any that became final regulations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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