DHS Issues Proposed Rule to Modernize the H-1B Specialty Occupation Worker Program

On October 23, 2023, the Department of Homeland Security (DHS) released a Notice of Proposed Rulemaking (NPRM), which the agency indicates will modernize and improve the H-1B specialty occupation worker program.  DHS states that these changes will improve the program by “streamlining eligibility requirements, improving program efficiency, providing greater benefits and flexibilities for employers and workers, and strengthening integrity measures.” 

The H-1B program allows employers to hire foreign nationals as workers in specialty occupations that require “the application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent.” 

The proposed rule would change the way USCIS conducts the H-1B cap registration process (H-1B lottery).  DHS seeks to address abuse in the H-1B cap registration process by allowing each unique individual who has a registration submitted on their behalf to be entered into the selection process only once, no matter the number of registrations submitted on their behalf.  This differs from the current process by which the more registrations that are submitted for an individual, the higher the chances that they will be selected in the lottery.

Additionally, through the proposed changes, DHS aims to improve the H-1B program by:

  • Streamlining eligibility requirements – The criteria for specialty occupation positions would be updated 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 would confirm that USCIS generally should defer to a prior determination when no underlying facts have changed at the time of a new filing;
  • Providing greater benefits and flexibilities for employers and workers – The proposed rule would expand certain exemptions to the H-1B cap for certain nonprofit entities or governmental research organizations as well as beneficiaries who are not directly employed by a qualifying organization.  Through the proposed rule, 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 entrepreneurs who are to be employed under H-1B classification; and
  • Strengthening integrity measures – DHS seeks to change the selection process in order to reduce misuse and fraud in the H-1B lottery by prohibiting related entities from submitting multiple registrations for the same beneficiary. The rule would also confirm the authority of USCIS to conduct site visits and indicate that refusal to comply with site visits may result in denial or revocation of the H-1B petition.

The public comment period for the proposed changes closes on December 22, 2023.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.