Department of Homeland Security issues H-1B rule-changes for public comment

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On Oct. 20, 2023, the Department of Homeland Security issues some rule changes to modernize the H-1B high skilled visa system, which the US Citizenship and immigration Service says would improve program efficiency and integrity.

The DHS, through USCIS published a Notice of Proposed Rulemaking (NPRM) that would it said, “modernize the H-1B specialty occupation worker program by streamlining eligibility requirements, improving program efficiency, providing greater benefits and flexibilities for employers and workers, and strengthening integrity measures.” The rule changes allow for a 60-day public comment period starting after the NPRM is put on the Federal Register.

“DHS continues to develop and implement regulations that increase efficiency and improve processes for employers and workers navigating the immigration system,” Secretary of Homeland Security Alejandro N. Mayorkas is quoted saying in the press release. “The Biden-Harris Administration’s priority is to attract global talent, reduce undue burdens on employers, and prevent fraud and abuse in the immigration system.”

The H-1B non-immigrant visa program allows U.S. employers to temporarily employ foreign workers in specialty occupations, defined by statute as occupations that require highly specialized knowledge and a bachelor’s or higher degree in the specific specialty, or its equivalent.

The proposed rule would change how USCIS conducts the H-1B registration selection process to reduce the possibility of misuse and fraud, it said.

Under the current process, the more registrations that are submitted on behalf of an individual, the higher chance that individual will be selected in a lottery.

Under the new proposal, each unique individual who has a registration submitted on their behalf would be entered into the selection process once, regardless of the number of registrations submitted on their behalf. This would improve the chances that a legitimate registration would be selected by significantly reducing or eliminating the advantage of submitting multiple registrations for the same beneficiary solely to increase the chances of selection, the USCIS said.

The change could also give beneficiaries more choice between legitimate job offers because each registrant who submitted a registration for a selected beneficiary would have the ability to file an H-1B petition on behalf of the beneficiary.

The USCIS maintains that additional provisions in the proposed rule would improve the H-1B program by:

• Streamlining eligibility requirements – criteria for specialty occupation positions would be revised to reduce confusion between the public and adjudicators and to clarify that a position may allow a range of degrees, although there must be a direct relationship between the required degree field(s) and the duties of the position;
• Improving program efficiency –The proposed rule  codifies that adjudicators generally should defer to a prior determination when no underlying facts have changed at time of a new filing;
• Providing greater benefits and flexibilities for employers and workers – certain exemptions to the H-1B cap would be expanded for certain nonprofit entities or governmental research organizations as well as beneficiaries who are not directly employed by a qualifying organization. DHS would also extend certain flexibilities for students on an F-1 visa when students are seeking to change their status to H-1B. Additionally, DHS would establish new H-1B eligibility requirements for rising entrepreneurs; and
• Strengthening integrity measures – in addition to changing the selection process, misuse and fraud in the H-1B registration process would be reduced by prohibiting related entities from submitting multiple registrations for the same beneficiary. The rule would also codify USCIS’ authority to conduct site visits and clarify that refusal to comply with site visits may result in denial or revocation of the petition.