H-1B Visa Program Changes Aimed at Stopping Applicants From Gaming Lottery
On Friday, October 20, 2023, the U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS) proposed significant changes to the H-1B program. It's crucial to note that this regulation is still in the proposal stage and won't be effective until after a comment period, DHS review, and the issuance of a final regulation. Public comments on this regulation are open until December 19 and can be submitted citing DHS Docket No. USCIS-2023-0005.
Modernization and Efficiencies
1. Amending the Definition of a "Specialty Occupation": The proposal seeks to revise the definition of a "specialty occupation" to better align with statutory definitions. It requires petitioners to demonstrate that the degree field requirement directly relates to the position, preventing broad listings like "engineering" without specialization.
2. Amending the Criteria for Specialty Occupation Positions: DHS proposes changes to the "normally required" criteria and the employer's requirements. They also emphasize non-speculative employment and clarify that LCA (Labor Condition Application) details must correspond with the H-1B petition.
3. Amended Petitions: The proposal clarifies when amended petitions are necessary, particularly concerning changes in employment locations. It also streamlines regulations related to short-term placements.
4. Deference: The proposed regulation aims to codify the policy of deferring to previously approved petitions unless there are material changes or errors.
5. Evidence of Maintenance of Status: Petitioners must provide evidence that the applicant maintained nonimmigrant status before requesting an extension or amendment, including quarterly wage reports, tax returns, contracts, and work orders.
6. Eliminating the Itinerary Requirement for H Programs: The requirement for itineraries is eliminated, reducing duplication of information already present in the LCA.
7. Validity Expires Before Adjudication: H-1B petitions can be approved or extended after the requested validity period if deemed approvable post the initial end-date through motions to reopen, reconsider, or appeal.
Benefits and Flexibilities
1. H-1B Cap Exemptions: Changes in wording expand eligibility for H-1B cap exemption, allowing beneficiaries who equally split time between exempt and non-exempt entities to qualify.
2. Automatic Extension of Authorized Employment (Cap-Gap): The cap-gap period is extended until April 1 of the following fiscal year to bridge employment gaps due to adjudication delays.
3. Start Date Flexibility: Restrictions on requested start dates are removed, allowing petitions to be submitted beyond October 1 with a start date within the fiscal year.
This proposed regulation represents a comprehensive attempt to modernize the H-1B program, streamline processes, enhance flexibility, and ensure program integrity. Keep in mind this is only a proposed rule. Members of the public are encouraged to put in comments as they see fit and comments can be accepted for the next 60 days. The Law Office of Adrienne J Vaughan will provide updates as more information comes about.