Breaking News: U.S. Department Of Homeland Security Announces NPRM For Update To H-1B Regulations (Summary Included) – General Immigration

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U.S. BREAKING NEWS

U.S. Department of Homeland Security Announces NPRM for Update
to H-1B Regulations (Summary Included)

On October 23, 2023, the U.S. Department of Homeland Security
(DHS) announced a notice of proposed rulemaking with significant
updates for the H-1B program. Titled “Modernizing H-1B
Requirements, Providing Flexibility in the F-1 Program, and Program
Improvements Affecting Other Nonimmigrant Workers”, DHS
proposed that these updates will further streamline the H-1B
program and improve both efficiency and integrity. Some of the key
proposed updates include:

  • Revised definition for
    Specialty Occupation

    • NPRM clarifies that “normally” does not mean
      always

    • NPRM clarifies that a position may allow a range of degrees
      required for entry into the specialty occupation, yet there must be
      a direct relationship between the required degree field(s) and the
      position


  • NPRM seeks to update the criteria for H-1B cap exemption,
    permitting qualification when the Beneficiary is not directly
    employed by a qualifying organization, but still provides essential
    work, even if their duties do not necessarily directly further the
    organization’s essential purpose.

  • NPRM seeks to automatically extend the duration of F-1 status,
    and any employment authorization granted under 8 CFR
    274a.12(c)(3)(i)(B) or (C), until April 1 of the relevant fiscal
    year, rather than October 1 (referring to “cap gap”)

  • NPRM seeks to add flexibility to the start date of cap-subject
    initial H-1B petitions (no longer strict requirement of October
    1)

  • NPRM seeks to change the way the Service selects H-1B
    registrations (with a goal of reducing H-1B registration abuse):

    • USCIS would select registrations by unique beneficiary
      regardless of how many registrations are submitting on the
      beneficiary’s behalf

    • Issue clarity that related entities are prohibited from
      submitting multiple registrations for the same beneficiary

    • Codify the Service’s ability to deny an H-1B cap case if
      the registration contained a false or invalid representation


  • NPRM seeks to improve the H-1B program integrity through:

    • Codifying USCIS’s authority to request contracts

    • Requiring Petitioner to establish an actual and non-speculative
      offer of employment for work in the United States

    • Ensuring the LCA is properly submitted

    • Ensuring that Petitioner has a legal presence in the United
      States


  • NPRM proposes to clarify that beneficiary-owners may be
    eligible for H-1B status, while setting reasonable conditions for
    when the beneficiary owns a controlling interest in the petitioning
    entity.

  • NPRM also proposes to codify USCIS’s authority to conduct
    site visits and clarify that refusal to comply with site visits may
    result in denial or revocation of the petition

The NPRM proposes numerous other confirmations, codifications to
current policy, and other updates, including: clarifying the rules
for an H-1B amendment; codifying the Service’s policy of
deferring to previous approvals; codifying the requirement of
showing maintenance of status when filing an H-1B, and other
updates. We welcome commonsense updates to the H-1B programs and
the Service’s intention to enhance equity in the H-1B
registration system. At the same time, we hope the proposed updates
to the H-1B program do not inhibit or restrain Petitioners from
obtaining H-1Bs for specialty workers. For example, yesterday,
President Biden issued an executive order seeking to add
further flexibility for immigrants and nonimmigrants working with
Artificial Intelligence, seeking to “moderniz[e] and
streamlin[e] visa criteria” for those working in this critical
area. We hope that these regulations remain consistent in efforts
to streamline, rather than to restrict, immigration and global
mobility.

Looking forward, the 60-day comment period for the NPRM began upon
its publication, lasting October 23, 2023 – December 22,
2023. We encourage any interested parties to comment. After, DHS
will review all comments and conduct their analysis, deciding
whether to proceed with the rulemaking process or update the
proposed changes to the program. Given that the H-1B Registration
window will open again in early March, we expect there is a vested
interest in moving some or all of these suggested reforms forward
before long. We will continue to monitor the updates to the H-1B
program and report any that became final regulations.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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