OnOctober 20, 2023, USCIS announced that it would propose newrules for the H-1B program. The proposed new rules are detailed in the Federal Register published on October 23,2023.

Whilemany of the proposed changes clarify or codify current adjudicative trends,other changes impose new restrictions on H-1B eligibility.

Clarificationsand Codifications

  • Deferenceto Previous USCIS Decisions

Theproposed rule codifies that USCIS officers should defer to prior approvals whenno underlying facts have changed at time of a new filing.

  • AmendedH-1B Petitions

Currently,practitioners must judge when to file amended petitions based on archived USCISpolicy guidance and DOL guidance and regulation. The proposed new rule willclarify that an amended or new petition must be filed pursuant to any change inwork location that requires a new LCA.

  • RelaxedRequirements for CAP-exemptions

The newrules would require that nonprofit and governmental research organizationsmerely conduct research as a fundamental activity, which is alooser interpretation that the previous requirement that these entities be primarilyengaged in research.

Additionally,the new rules would allow beneficiaries to qualify for H–1B cap exemption whenthey are not directly employed by a qualifying organization, but still provideessential work, even if their duties do not necessarily directly further theorganization’s essential purpose.

  • Extensionof the CAP-gap period

Currently,the CAP-gap is an automatic extension of status for F-1 students whose F-1validity period is set to expire before H-1B petitions go into effect onOctober 1. This poses a particular problem for H-1B CAP beneficiaries who arechosen in second or third rounds of the H-1B CAP, who cannot begin work onOctober 1. The new rules would extend the CAP-gap period, which would extendboth F-1 students’ statuses and work authorization, through April 1 of the yearfollowing H-1B petition submission. Such an extension would afford CAP-gapprotection for F-1 students whose H-1B petitions are approved with start datespast October 1.

  • CAPLottery Selection

Under thenew rule, related entities would be prohibited from submitting multipleregistrations for the same beneficiary.

The rulewould also select individual H-1B lottery beneficiaries, rather thanregistrations. Currently, a beneficiary can conceivably be selected multipletimes if he or she has multiple registrations submitted on his or her behalf,resulting in low selection rates for most H-1B CAP lottery beneficiaries. Thenew rule would allow each beneficiary to be selected only once; if abeneficiary holds multiple registrations, each registering company would benotified of selection and provided an opportunity to file a legitimate H-1Bpetition on the beneficiary’s behalf.

BurdensomeRequirements

  • Contract Requestsfor Third-Party Placements

The newrule would grant USCIS authority to request contracts, work orders, or othersuch evidence to document bona fide job offers. The new rule would require suchevidence show the contractual relationship between all parties, the terms andconditions of the beneficiary’s work, and the minimum educational requirementsto perform the duties. 

Currently,the regulations do not state this authority.

SpecialtyOccupation Definition

The newrule imposes a new requirement for qualification as a “Specialty Occupation” thatthere exist a direct relationship between the required degree field(s) for theposition and the duties of the position. The new rule iterates that a generaldegree is insufficient to qualify. 

USCIS will now accept comments from thepublic on the proposed new rules for 60 days before afinal rule may be published.