DHS Proposes to Modernize and Improve the H-1B Program
October 23, 2023
A notice of proposed rulemaking (NPRM) was announced by the U.S. Department of Homeland Security to modernize and improve the regulations for the H-1B specialty occupation worker program.
Through this proposed rule, DHS seeks to streamline the requirements of the H-1B program, improve program efficiency, provide greater flexibility for petitioners and beneficiaries, and improve integrity measures.
Among additional provisions, the proposed rule would improve the H-1B program by:
- Streamlining eligibility requirements– criteria for specialty occupation positions would be revised to ensure a direct relationship between the required degree field(s) and the duties of the position, recognizing there may be more than one acceptable degree field for a specialty occupation and a general degree is insufficient to qualify.
- Improving program efficiency– DHS would clarify when an amended or new petition must be filed due to a change in an H-1B worker’s place of employment consistent with current policy guidance. The proposed rule also 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 and beneficiaries who are not directly employed by a qualifying organization. DHS would also extend certain flexibilities for students on a F-1 visa when students are seeking to change their status to H-1B and establish new H-1B eligibility requirements for rising entrepreneurs; and
- Strengthening integrity measures– the H-1B registration selection process would be improved to reduce the possibility of misuse and fraud, including 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.
To Submit Comments
The NPRM allows for a 60-day public comment period that begins once the NPRM is published in the Federal Register. You may submit comments through Regulations.gov. Please follow the instructions for submitting comments. DHS may not review comments submitted in a manner other than the one listed in the instructions, including emails or letters sent to DHS or USCIS officials.
DHS welcomes public comments on the proposed rule, including legal and policy considerations, and suggestions for alternative approaches. We will review all properly submitted comments, consider them carefully, and draft responses before issuing a final rule.
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