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DHS Unveils Proposal To Enhance The H-1B Specialty Occupation Worker Program
Kris Quadros-Ragar • November 10, 2023
The U.S. Department of Homeland Security (DHS), through the U.S. Citizenship and Immigration Services (USCIS), has unveiled a Notice of Proposed Rulemaking (NPRM) with the objective of modernizing the H-1B specialty occupation worker program. This proposed overhaul is intended to simplify eligibility requirements, enhance program efficiency, provide improved benefits and flexibilities for both employers and workers and reinforce measures to guarantee the integrity of the program.
The H-1B program plays a vital role in allowing U.S. employers to recruit the talent they need to meet business demands and maintain their competitiveness in the global arena while adhering to the legal protections of U.S. workers. Alejandro N. Mayorkas, the Secretary of Homeland Security, affirms that DHS is committed to developing and implementing regulations that streamline processes for employers and workers in the immigration system. The top priority of the Biden-Harris Administration is to attract global talent, reduce undue burdens on employers, and combat fraud and abuse in the immigration system.
Under the H-1B nonimmigrant visa program, U.S. employers can temporarily employ foreign workers in specialized occupations that require highly specialized knowledge and a bachelor's degree or higher in the specific field.
The proposed rule outlines significant changes, including a modification in how USCIS conducts the H-1B registration selection process to reduce the potential for misuse and fraud. The current system allows a higher chance of selection in the lottery for individuals with more registrations submitted on their behalf. However, the proposal suggests that each individual with a registration submitted for them should be entered into the selection process once, regardless of the number of registrations submitted. This change aims to level the playing field and reduce the incentive to submit multiple registrations for the same beneficiary to increase their odds of selection. Additionally, it could expand job opportunities for beneficiaries, as each registrant with a selected beneficiary would have the option to file an H-1B petition on their behalf.
The proposed rule also introduces several other provisions, including:
- Simplifying eligibility criteria by revising criteria for specialty occupation positions, reducing confusion, and clarifying that a position may accept a range of degrees as long as they are directly related to the position's duties.
- Enhancing program efficiency by formalizing the practice of adjudicators deferring to prior determinations when there have been no changes in underlying facts during a new filing.
- Extending benefits and flexibilities to employers and workers, such as expanding exemptions to the H-1B cap for certain nonprofit entities, governmental research organizations, and beneficiaries not directly employed by a qualifying organization. It also provides additional flexibility for F-1 visa students seeking to change their status to H-1B and introduces new H-1B eligibility requirements for emerging entrepreneurs.
- Strengthening integrity measures by preventing related entities from submitting multiple registrations for the same beneficiary, empowering USCIS to conduct site visits, and clarifying that non-compliance with site visits may lead to petition denial or revocation.
The NPRM (published here) invites public comments for a 60-day period following its publication in the Federal Register. It's crucial to note that these proposed changes will only become effective after undergoing the finalization process and receiving approval through federal review. Some of these changes may be implemented in time for the FY 2025 H-1B cap season, expected to begin in early 2024. USCIS has indicated the possibility of implementing these changes incrementally through one or more final rule releases.
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This blog is not intended to be legal advice and nothing here should be construed as establishing an attorney client relationship. Please schedule a consultation with an immigration attorney before acting on any information read here.
Kris Quadros-Ragar
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