On 10/23/2023, the Department of Homeland Security (DHS) unveiled a significant rule titled "Modernizing H–1B Requirements, Providing Flexibility in the F–1 Program, and Program Improvements Affecting Other Non-immigrant Workers." This rule, with potential far-reaching implications, proposes a host of changes to the H-1B visa program, which will be the focus of this article.
H-1B cap lottery: Each beneficiary will be considered a unique entry for the visa lottery, regardless of the number of registrations that have been entered on their behalf. Registrations by related entities are prohibited.
Revised definition of an H-1B employer: DHS abandons the common-law definition of an employer. Instead, a petitioner-employer must have a bona fide job offer for the beneficiary to work within the U.S., a legal presence and is amenable to service of process in the U.S.
Codified employer-employee relationship: A petitioner needs to only prove that it has the authority to hire, pay, fire, supervise, or otherwise control the work of the beneficiary.
Bona-fide offer of employment: Contracts, agreements, work orders, etc., can be requested to prove the existence of a bona-fide job offer. Bona-fide job offers may include ‘‘telework, remote work, or other off-site work within the U.S.’’
Self-petitions Allowed: The rule allows a beneficiary to own or control the petitioning entity. The beneficiary may spend time directing and managing the operations of the entity, as long as the beneficiary will perform specialty occupation duties a majority of the time. However, DHS will only approve the first two petitions filed by such beneficiary-owner for a maximum of 18 months.
Definition of specialty occupation clarified: An occupation “normally” requiring a bachelor’s degree doesn’t mean that it must “always” require a bachelor’s degree. Further, a broad range of degrees can be required for a specialty occupation, so long as the subjects of these degrees are related to the specialty occupation.
Third party placement: If an employee is placed to work at a third party client's organizational hierarchy, the job duties of the third party client will be used to determine whether the position is a specialty occupation.
Deference to prior approvals: The rule will codify the policy of giving deference to prior adjudications of H-1B and other non-immigrant petitions, if there have been no material changes in facts and circumstances.
Cap-gap extension extended: The rule proposes to extend the current gap-gap extension end date from October 1 to April 1 of the following year, while F-1 students are waiting for their H-1B petitions to be adjudicated.
Evidence of maintenance of status: H-1B petition must be filed with proof of the beneficiary's immigration status, including copies of recent pay stubs and W-2 annual pay statements.
Redefining “nonprofit research organization” and “governmental research organization”: The rule proposes to replace “primarily engaged” with “a fundamental activity of”. Hence, a nonprofit entity that conducts research as a fundamental activity but is not primarily engaged in research can also meet the definition of a nonprofit research entity.
The public has 60 days to comment on the proposed rule, and it will take longer for DHS to consider these comments and finalize the rule. However, DHS has indicated that H-1B cap anti-fraud provisions are a priority, so those provisions may be finalized first before the 2024 H-1B lottery. Stay tuned for further details.
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