The Department of Homeland Security (DHS) plans to amend its H-1B regulations “governing H–1B specialty occupation workers to modernize and improve the efficiency of the H–1B program, add benefits and flexibilities, and improve integrity measures.” The notice of proposed rulemaking (NPRM), published in the Federal Register on October 23, 2023, would also “narrowly impact other nonimmigrant classifications, including: H-2, H-3, F-1, L-1, O, P, Q-1, R-1, E-3, and TN.” The public has 60 days to comment on the proposed rule.
Below is a non-exhaustive summary of highlights. DHS proposes to:
- Revise the regulatory definition and criteria for a “specialty occupation” and clarify that a position may allow a range of degrees if they have a direct relationship to the duties of the position;
- Clarify when an amended or new petition must be filed due to a change in an H-1B worker’s place of employment;
- Codify and clarify 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;
- Require evidence of maintenance of status to be included with the petition if a beneficiary is seeking an extension or amendment of stay;
- Change the definition of “nonprofit research organization” and “governmental research organization” by replacing “primarily engaged” and “primary mission” with “fundamental activity” to permit a nonprofit entity or governmental research organization that conducts research as a fundamental activity, but is not primarily engaged in research or where research is not a primary mission, to meet the definition of a nonprofit research entity;
- 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;
- 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;
- Select H-1B cap registrations by unique beneficiary rather than by registration;
- Clarify that related entities are prohibited from submitting multiple registrations for the same beneficiary;
- 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; and
- 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.