Overview: The Department of Homeland Security (DHS) has released a Notice of Proposed Rulemaking (NPRM), in collaboration with U.S. Citizenship and Immigration Services (USCIS), aimed at modernizing the H-1B specialty occupation worker program. The proposed changes focus on enhancing efficiency, simplifying eligibility criteria, providing more flexibility for employers and workers, and reinforcing program integrity.
Streamlined Registration Selection Process: The proposed rule introduces a fairer selection process for H-1B registrations. Rather than favoring multiple registrations for a single individual, each unique beneficiary will be entered into the selection process once. This minimizes the advantage of submitting multiple registrations for a single candidate to increase the likelihood of selection.
Enhanced Eligibility Requirements: The eligibility criteria for specialty occupation positions will be refined, making it clearer that positions can accommodate a range of degrees, provided there’s a direct relationship between the required degree field(s) and the position’s duties.
Improved Program Efficiency: The rule establishes that adjudicators should generally defer to previous determinations if there have been no changes in underlying facts at the time of a new filing.
Greater Flexibility for Employers and Workers: The proposed rule expands H-1B cap exemptions for nonprofit entities, governmental research organizations, and beneficiaries not directly employed by a qualifying organization. It also extends certain flexibilities for F-1 visa students looking to transition to H-1B status. New eligibility requirements for aspiring entrepreneurs are introduced.
Strengthened Integrity Measures: The NPRM seeks to curb misuse and fraud by prohibiting related entities from submitting multiple registrations for the same beneficiary. It also solidifies USCIS’ authority to conduct site visits, with non-compliance potentially leading to petition denial or revocation.
Public Comment Period: A 60-day public comment period will commence upon the NPRM’s publication in the Federal Register.
These proposed changes aim to enhance the H-1B program’s effectiveness while aligning with the Biden-Harris Administration’s commitment to attracting global talent, reducing bureaucratic burdens for employers, and maintaining the integrity of the immigration system.