USCIS Issues Favorable Proposed Rule on the H-1B Specialty Occupation Worker Program

The U.S. Citizenship and Immigration Services (“USCIS”) recently issued a Notice of Proposed Rulemaking (“NPRM”) relating to the H-1B nonimmigrant visa classification. The proposed rule intends to streamline H-1B eligibility requirements, provide greater benefits and flexibilities to employers and workers, and strengthen integrity measures of the program by clarifying and codifying existing policies and making changes to the H-1B registration process. USCIS proposed to make the following changes:

Clarifying Definition of “Specialty Occupation”

The proposed rule recommends codifying the following clarifications of the eligibility criteria for “specialty occupation” positions: (1) a “specialty occupation” position can require a range of degree fields as long as there is a direct relationship between each degree field and the duties of the position; (2) a position does not qualify as a “specialty occupation” position if it only requires attainment of a general degree, such as business administration or liberal arts, without further specialization; and (3) the requirement that the position “normally” requires a bachelor’s degree does not mean always.

Codifying Policy Guidance as to Amended Petitions

The proposed rule intends to codify current USCIS policy requiring a new petition to be filed in the event of a material change in worksite location (generally a change in the metropolitan statistical area) before an H-1B worker may begin work at the new location. This correlates with Department of Labor (“DOL”) requirements that a new Labor Condition Application (“LCA”) be filed under these circumstances.

Codifying Current USCIS Deference Policy

The proposed rule intends to codify USCIS’s current deference policy to ensure consistent and reliable outcomes. This policy states that absent any material error with the prior decision, material change in circumstances or eligibility, or new adverse material information impacting eligibility, adjudicators should consider and give deference to prior determinations involving same parties and underlying facts.

Codifying Current Maintenance of Stay Practices 

The proposed rule intends to codify the current requirement that an applicant seeking an extension of stay, amendment, or change of status must submit maintenance of stay documents. Although this requirement is already found in the application form instructions, USCIS hopes that including it in the regulations will help reduce the need for requests for evidence (“RFE”) or notices of intent to deny (“NOID”).

Eliminating Itinerary Requirement

In the proposed rule, USCIS states that the rule requiring an H-1B filing to include an itinerary in cases where services are to be performed at more than one location is duplicative and recommends that this requirement be eliminated.

Validity Expires Before Adjudication

In the proposed rule, USCIS recommends allowing the approval of H-1B petitions even after the requested petition end-date has passed. Such petitions must currently be denied by adjudicators, but under the proposed rule, USCIS will send the petitioner an RFE asking if they want to extend their petition validity period dates. The petitioner will then be able to provide new dates along with a new LCA, which will be accepted even if certified after the original H-1B filing date.

Expanding the Definition of Cap-Exempt Employers

The proposed rule intends to expand the definition of cap-exempt workers who are not “directly employed” by a qualifying entity. Currently, the rule is that such workers are exempt if they spend “majority of” their time at a qualifying organization and their duties will “directly and predominately further the essential purpose, mission, objectives, or functions of the qualifying organization.”  In the new rule, USCIS proposes that the phrase “majority of” be changed to “at least half of” to include those workers that equally split their time between a qualifying and non-qualifying entity. It also proposes to eliminate the “directly and predominately” requirement and replace it with the requirement that the workers duties “directly further an activity that supports or advances one of the fundamental purposes, missions, objectives, or functions of the qualifying institution, organization, or entity.”

Furthermore, the proposed rule intends to expand the definition of cap-exempt “nonprofit research organization” and “government research organization.” Currently, the standard for these organizations is to be “primarily engaged” in or whose “primary mission” is basic/applied research. The new standard would allow entities who conduct research as a “fundamental activity,” but are not primarily engaged in research or whose primary missions is not research, to still be cap-exempt.

Providing an Automatic Extension of Authorized Employment Under F-1 Cap Gap

The proposed rule seeks to provide an automatic extension of F-1 status and work authorization until April 1 of the same fiscal year for which an H-1B petition is requested. Currently the automatic extension is only valid until October 1, the very start of the USCIS fiscal year.

Permitting Start Date Flexibility for H-1B Cap-Subject Petitions

In the proposed rule, USCIS recommends eliminating the regulatory requirement that H-1B cap-subject petitions have to list a start date of October 1. This would remove any ambiguity and clearly allow the H-1B start date for cap-subject petitions to be on or after October 1, which is consistent with current USCIS policy.

Changing the Annual H-1B Visa Lottery Selection Process

The proposed rule recommends the following as to the H-1B visa lottery selection process: (1) shifting to selection by unique beneficiary, not by registrations; (2) extending the prohibition of related entities from submitting multiple registration for the same beneficiary; and (3) codifying USCIS’s ability to deny or revoke registrations and subsequent petitions that contain falsities or are otherwise invalid.

While the second and third recommendation involve a codification of existing USCIS policy, the first recommendation is a change to the current selection process. This change would require registrations to include a beneficiary’s passport information in order to simplify the pooling of all registrations made on behalf of one beneficiary. Selecting by beneficiary would then reduce the amount of duplicative beneficiary selections which is the goal of all three recommendations.

Other Recommendations

In addition to the recommendations discussed, USCIS also proposes the following: (1) codifying its authority to request employer contracts; (2) requiring that petitioner establishes that there is a bona fide job offer; (3) ensuring that LCA’s properly support and correspond with the petition; (4) adding requirement that petitioner has to have legal presence in the US and be amendable to service of process; (5) codifying USCIS’ authority to conduct site visits; and (6) clarifying that if an H-1B employee is to be staffed at a third party, then it is the requirements of the third party that are most relevant to determining if a position is a specialty occupation.

The comment period on the proposed rule ends on December 22, 2023. To read the full proposed rule, please see: Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers.