Category: H-1B Visa

  • Biden Administration Releases Spring 2024 Regulatory Agenda – CUPA-HR

    Biden Administration Releases Spring 2024 Regulatory Agenda – CUPA-HR

    by CUPA-HR | July 11, 2024

    On July 5, the Biden administration released the Spring 2024 Unified Agenda of Regulatory and Deregulatory Action (Regulatory Agenda), providing insights on regulatory and deregulatory activity under development across more than 60 federal departments, agencies and commissions. The Spring 2024 Regulatory Agenda is the first of two that will be released during the calendar year, and it sets target dates for regulatory actions in the coming months.

    CUPA-HR’s government relations team reviews each Regulatory Agenda that is released and has put together the following list of noteworthy regulations included in the current edition.

    Department of Education

    Office for Civil Rights – Discrimination Based on Shared Ancestry or Ethnicity in Response to EO 13899 on Combating Anti-Semitism and EO 13985 on Advancing Racial Equity and Support for Underserved Communities

    The Department of Education’s Office for Civil Rights (OCR) is targeting December 2024 for the release of a Notice of Proposed Rulemaking (NPRM) to amend Title VI of the Civil Rights Act of 1964 and OCR’s enforcement responsibilities for cases involving discrimination based on shared ancestry or ethnic characteristics. OCR is issuing this NPRM in response to a 2019 Trump Executive Order (EO) and a 2021 Biden EO.

    The NPRM has become a higher priority for OCR, given the recent political activity on campus related to the war in Gaza and related scrutiny from Congressional Republicans of higher education’s response to protests on campus. In the Regulatory Agenda announcement, OCR explains the need for this rulemaking by stating that they have “received complaints of harassment and assaults directed at Jewish, Muslim, Hindu and other students based on their shared ancestry or ethnicity.”

    Office for Civil Rights – Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams

    According to the Regulatory Agenda, the Biden administration has pushed its final rule on transgender students’ participation in athletic programs to its “long-term actions,” with an undetermined date for when the final rule will be published. In the Fall 2023 Regulatory Agenda, the final rule was previously targeted for March 2024.

    OCR released an NPRM on this topic in April 2023. Under the NPRM, schools that receive federal funding would not be permitted to adopt or apply a one-size-fits-all ban on transgender students participating on teams consistent with their gender identity. Instead, the proposal allows schools the flexibility to develop team eligibility criteria that serves important educational objectives, such as fairness in competition and preventing sports-related injuries. The department further explained that the eligibility criteria must take into account the sport, level of competition, and grade or education level of students participating, and the criteria would have to minimize harm to students whose opportunity to participate on a team consistent with their gender identity would be limited or denied.

    The move to push the final rule to “long-term actions” with an undetermined publication date is likely a result of recent challenges to the Biden administration’s Title IX final rule and the upcoming election. Shortly after the Title IX rule was published, over two dozen states joined lawsuits challenging the regulations, with many citing the inclusion of protections for gender identity and sexual orientation as top concerns with the final rule. Since then, the Title IX final rule has been blocked from going into effect on August 1 in 14 states.

    Federal Acquisition Regulation (FAR)

    Pay Equity and Transparency in Federal Contracting

    In December 2024, the Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) anticipate releasing a final rule to amend the Federal Acquisition Regulation (FAR) on pay equity and transparency in federal contracting.

    The joint agencies published a pay equity and transparency NPRM in January 2024. In the NPRM, the agencies propose to amend the FAR to implement a government-wide policy that would:

    1. prohibit contractors and subcontractors from seeking and considering job applicants’ previous compensation when making employment decisions about personnel working on or in connection with a government contract (“salary history ban”), and
    2. require these contractors and subcontractors to disclose on job announcements the compensation to be offered (“compensation disclosure” or “pay transparency”).

    As part of its justification for publishing the NPRM, the proposal noted that 21 states, 22 localities, and Washington, D.C., have put bans into place that prohibit employers from asking job applicants for their salary, and 10 states have pay transparency laws in place, with several other states working toward implementing such laws.

    Department of Homeland Security

    U.S. Citizenship and Immigration Services – Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers

    According to the Regulatory Agenda, the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) anticipates releasing at least one more final rule to modernize the H-1B and F-1 visa programs in December 2024.

    In October 2023, USCIS issued an NPRM to simplify the application process for H-1B visas, increase the program’s efficiency, and strengthen the program’s integrity measures. In February 2024, USCIS issued a final rule to implement a new beneficiary-centric selection process for H-1B registrations, but it did not finalize all of the provisions that were originally included in the NPRM. When publishing the February 2024 final rule, DHS indicated that it planned to publish a separate final rule to address the remaining aspects from October’s proposed rule. The separate final action listed in the Spring Regulatory Agenda will likely be the remainder of the provisions from the NPRM.

    CUPA-HR will keep members apprised of updates to these regulations and additional policies as they are introduced.



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  • New Instructions Clarify USCIS Fee Rule Reductions and Exemptions for Higher Ed – CUPA-HR

    New Instructions Clarify USCIS Fee Rule Reductions and Exemptions for Higher Ed – CUPA-HR

    by CUPA-HR | March 6, 2024

    On March 1, 2024, U.S. Citizenship and Immigration Services published updated forms and filing instructions for the I-129, Petition for a Nonimmigrant Worker and the I-140, Immigrant Petition for Alien Workers. These updates incorporate new fee calculations as outlined in the USCIS fee rule. Notably, the filing instructions state that institutions “of higher education, as defined in section 101(a) of the Higher Education Act of 1965” are eligible for the reduced fees and exemption from the Asylum Program fee.

    This clarification follows the issuance of a final rule by USCIS on January 31, 2024, which adjusted the fees for most immigration applications and petitions, resulting in significantly higher fees for most employment-based petitioners. However, due to concerns raised by stakeholders, including CUPA-HR and other higher education institutions, the final rule provided relief for nonprofit organizations in the form of fee reductions as well as an exemption from a newly introduced fee intended to fund the Asylum Program.

    In a previous blog post, CUPA-HR addressed the confusion stemming from the final rule’s reliance on the Internal Revenue Code’s definition of a nonprofit organization, particularly 26 U.S.C. 501(c)(3). This definition caused uncertainty among public universities and colleges, which, while tax-exempt, are not classified as 501(c)(3) entities. The preamble to the final rule suggested that the agency’s approach to defining “nonprofit” was designed to ensure that the primary types of organizations eligible for the American Competitiveness and Workforce Improvement Act’s fee reduction — specifically, educational institutions, nonprofit research organizations, and governmental research organizations — would also qualify for fee reductions and exemptions under this rule. However, the possibility of a strict interpretation of “nonprofit” might have left public universities and colleges facing increased fees.

    The updated filing instructions offer much-needed clarity on the fee reductions and exemptions, ensuring that institutions of higher education as defined by the Higher Education Act of 1965 will not be overly burdened by petitioner fees.



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  • DHS Announces First Phase of Final H-1B Modernization Rule – CUPA-HR

    DHS Announces First Phase of Final H-1B Modernization Rule – CUPA-HR

    by CUPA-HR | February 1, 2024

    On January 30, 2024, the Department of Homeland Security (DHS) announced a final rule to implement a new beneficiary-centric selection process for H-1B registrations. This rule, which also introduces start date flexibility for certain H-1B cap-subject petitions and additional integrity measures, is scheduled for publication in the Federal Register on February 2, 2024, and will become effective 30 days later.

    The rule does not finalize all the provisions in the H-1B Modernization Proposal from last October. Notably absent are changes to the definitions of H-1B specialty occupation, policies of deference to prior adjudications, and modifications to cap-gap protection, among others. DHS has indicated plans to publish a separate final rule to address these remaining aspects from October’s proposed rule.

    Summary of Key Changes

    • Beneficiary-Centric Selection Process. The final rule introduces a change in the H-1B registration selection process. Instead of a registration-based lottery system, DHS will now implement a beneficiary-centric approach. This means that each foreign worker (beneficiary) will be entered into the selection process once, irrespective of the number of registrations submitted on their behalf. This change is designed to offer a fairer, more equitable system and reduce the potential for manipulation.
    • Start Date Flexibility. The final rule provides more flexibility for the employment start dates in H-1B cap-subject petitions. Employers will now be allowed to file petitions with start dates that are after October 1 of the relevant fiscal year. This aligns with current DHS policy and removes previous restrictions, offering more convenience for employers and beneficiaries.
    • Enhanced Integrity Measures. Under the final rule, DHS codifies its ability to deny or revoke H-1B petitions in cases where the underlying registration contains a false attestation or is otherwise invalid. Additionally, the rule stipulates that DHS may deny or revoke the approval of an H-1B petition if issues arise with the H-1B cap registration fee, such as if the fee is declined, not reconciled, disputed, or deemed invalid after submission.

    With the final rule, DHS not only introduces key adjustments to the H-1B visa process but also sets the stage for efficiency enhancements. Starting February 28, 2024, USCIS will launch an online filing option for Forms I-129, Petition for a Nonimmigrant Worker, and Form I-907, Request for Premium Processing Service.

    In addition, USCIS will launch new organizational accounts in its online platform on February 28. These accounts are designed to enable collaboration within organizations and their legal representatives on H-1B registrations, petitions, and associated premium processing requests. While some details about this new account system and the e-filing function have been provided, USCIS is expected to release more comprehensive information in the coming weeks.



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  • Bridging 2023 and 2024: Key U.S. Immigration Updates From December – CUPA-HR

    Bridging 2023 and 2024: Key U.S. Immigration Updates From December – CUPA-HR

    by CUPA-HR | January 11, 2024

    December was a busy month for immigration-related developments, with several important updates that have implications for the higher education sector. In this post, we provide highlights of the actions that took place last month.

    CUPA-HR Joins Comments to DHS on H-1B Modernization NPRM

    On December 22, 2023, CUPA-HR and 19 other higher education associations joined comments led by the American Council on Education (ACE) in response to the Department of Homeland Security’s (DHS) H-1B Modernization Proposal. Additionally, CUPA-HR joined 73 organizations from the higher education, state and local economic development, business, science, and policy sectors to submit a comment in response to the H-1B Notice of Proposed Rulemaking’s (NPRM) proposed definition for specialty occupations.

    The ACE-led letter expresses support for several of the proposed changes. These include the change to a beneficiary-centric lottery system, codifying DHS policy of deference to prior adjudications of Form I-129 petitions, clarifying the term “normally” in specialty occupation criteria, and implementing an automatic extension for CAP-GAP. (CAP-GAP is the time between the official end-date of an F-1 student visa and the start date of the H-1B visa). However, the letter also expresses concerns about proposed changes to the definition of a “specialty occupation” and “specific specialty requirement” in the H-1B visa program. The concerns highlight the potential limitation on the ability to attract diverse candidates for faculty positions and the narrowing pipeline for growth in high-technology fields, which could deter foreign students and hinder research and innovation in the United States. The letter calls for a reconsideration of these proposed changes to ensure that H-1B visa regulations align with the evolving dynamics of professional education and the modern workforce.

    In the multi-sector comment letter, CUPA-HR joined voices to address concerns over the H-1B NPRM’s proposed redefinition of “specialty occupations.” This diverse coalition raised issues about the potential negative impacts of these changes on interdisciplinary hiring, particularly in emerging science and technology fields. They argued that the new requirements, like the need for a degree to be “directly related” to job duties, could limit U.S. competitiveness in global innovation and create challenges for employers.

    Now that the comment period has concluded, the DHS will begin the process of reviewing the feedback received. As the department moves toward finalizing the proposals within this rulemaking, they may issue one or more final rules, depending on the availability of agency resources. CUPA-HR will continue to closely monitor these developments and keep its members informed of all significant updates and outcomes.

    State Department Announces Extension and Expansion of the Nonimmigrant Visa Interview Waiver Program

    On December 21, 2023, the Department of State (DOS) determined that, in consultation with DHS, certain categories of interview waivers are in the national interest. As a result, consular officers will continue to have the authority and discretion to waive an in-person interview for certain categories of nonimmigrant visa cases, with some changes made by DOS.

    This update includes the following key changes.

    • First-time H-2 Visa Applicants: Temporary agricultural and non-agricultural workers applying for H-2 visas are now eligible for an interview waiver.
    • Extended Eligibility for Other Visa Applicants: The waiver also applies to applicants for any nonimmigrant visa classification who have previously been issued a visa other than a B visa and are reapplying within 48 months of their last visa’s expiration.
    • Renewal Policy Unchanged: Applicants renewing their nonimmigrant visa in the same classification within 48 months of the prior visa’s expiration date continue to be eligible for the interview waiver.

    The department’s previous interview waiver eligibility criteria were set to expire on December 31, 2023. Not only has the program been extended as of January 1, but it now also includes more nonimmigrant categories. Notably, the current guidance is intended to remain in place indefinitely, as no expiration date has been specified.

    DOL Issues Request for Information on PERM Schedule A Revisions

    On December 21, 2023, in alignment with President Biden’s Executive Order 14110 on Artificial Intelligence, the Department of Labor’s (DOL) Employment and Training Administration (ETA) issued a Request for Information (RFI) that aims to gather public feedback on potential updates to Schedule A job classifications that exempt certain roles from the standard labor certification requirements. Specifically, the DOL is exploring the inclusion of AI, other STEM-related occupations, and additional fields where there is a notable shortage of qualified U.S. workers.

    According to the Immigration and Nationality Act’s labor certification provisions, employers are obligated to demonstrate that there are insufficient U.S. workers available and that hiring foreign nationals will not adversely affect the wages and working conditions of similar U.S. roles. This process is managed through the Program Electronic Review Management (PERM) system by the ETA. Employers seeking labor certification for prospective permanent immigrant workers must navigate a complex and time-consuming process, often extending the immigration timeline.

    Schedule A, established by the DOL in the mid-1960s, pre-certifies occupations experiencing national labor shortages, thereby waiving the labor certification requirement for these roles. Currently, Schedule A is divided into two groups: Group I comprises physical therapists and professional nurses, and Group II includes occupations that require exceptional ability in the sciences, arts, or performing arts. With this RFI, the DOL aims to critically examine and potentially broaden Schedule A’s scope, a move that could accelerate the hiring of essential foreign talent by aligning with evolving labor market demands and streamlining the employment authorization process.

    Key areas where the department seeks input include the following.

    1. Identifying Labor Shortages in STEM: The department invites suggestions on the most appropriate data sources and methods to ascertain whether there are labor shortages in STEM occupations. They are interested in understanding if Schedule A should be utilized to mitigate these shortages and how to develop a reliable, objective, and transparent method to identify STEM occupations facing labor shortages.
    2. Scope of STEM Occupations: There’s a need for input on whether the examination of STEM occupations should be limited to those outlined in the Occupational Employment and Wage Statistics and recent Bureau of Labor Statistics publications, or whether it should be broadened to include additional occupations, particularly those covering Skilled Technical Work occupations.
    3. Inclusion of Non-STEM Occupations: The department is also open to suggestions on whether non-STEM occupations facing worker shortages should be added to Schedule A. Input is sought on how to determine such shortages and ensure that the employment of foreign workers in these roles does not negatively impact U.S. workers.

    Comments in response to the RFI are due on February 20, 2024.

    U.S. Department of State Announces Pilot Program for Domestic Renewal of H-1B Visas

    On December 21, 2023, DOS announced a pilot program to resume domestic visa renewal for H-1B nonimmigrant visa applicants who meet certain requirements. It offers eligible H-1B visa holders the chance to renew their visas within the U.S., bypassing the need for an in-person interview at a consulate or embassy. DOS will start accepting online applications for the H-1B visa renewal pilot program on January 29, 2024.

    Eligibility for the U.S. Department of State’s H-1B visa renewal pilot program is defined by a set of specific criteria:

    • Visa Classification and Issuance: The program is strictly for those looking to renew an H-1B visa. Eligible visas must have been issued by Mission Canada (from January 1, 2020, to April 1, 2023) or Mission India (from February 1, 2021, to September 30, 2021).
    • Fee and Interview Requirements: Applicants should not be subject to a nonimmigrant visa issuance fee, often referred to as a “reciprocity fee,” and must be eligible for a waiver of the in-person interview.
    • Biometric and Visa Status: Participants must have previously submitted ten fingerprints for a visa application, and their prior visa should not include a “clearance received” annotation. Additionally, they must not have any visa ineligibilities requiring a waiver.
    • Petition and Status Maintenance: It’s essential that applicants have an approved, unexpired H-1B petition, are currently maintaining H-1B status in the U.S., and their period of authorized admission in this status has not expired.
    • Travel and Reentry Intent: Applicants must have been last admitted to the U.S. in H-1B status and intend to reenter the U.S. in the same status after temporary travel abroad.

    Background and Objectives. The pilot is a response to the discontinuation of domestic non-diplomatic visa renewals in 2004 due to the requirement for biometric identifiers. With advancements in technology, the DOS is now looking to assess its capacity to handle domestic renewals and reduce global visa application backlogs. This pilot is particularly aimed at alleviating uncertainties for U.S. companies employing temporary H-1B workers.

    Application Process:

    • Application Portal: U.S. Visa Employment Domestic Renewal.
    • Slot Allocation: Approximately 4,000 slots will be available weekly, split between applicants with visas issued by Mission Canada and Mission India.
    • Application Dates: January 29, February 5, 12, 19, and 26. The portal will close temporarily once weekly caps are reached.
    • Application Window: The program will close on April 1, 2024, or when all slots are filled, whichever is earlier.

    Currently, the program excludes categories like H-4 visas. The DOS plans to extend the program to more visa types in the future, but for now, it’s limited to H-1B principal applicants meeting the specified criteria.



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  • Overtime and Title IX Final Rules Targeted for Early 2024 Release in Fall Regulatory Agenda – CUPA-HR

    Overtime and Title IX Final Rules Targeted for Early 2024 Release in Fall Regulatory Agenda – CUPA-HR

    by CUPA-HR | December 12, 2023

    On December 6, the Biden administration released the Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions, providing the public with an update on the regulatory and deregulatory activities under development across approximately 67 federal departments, agencies and commissions. This release is the second and final regulatory agenda for 2023, and it sets target dates for upcoming regulatory actions mainly for the first half of 2024.

    CUPA-HR has highlighted the following items from the Fall 2023 Regulatory Agenda for members to be aware of as we enter the new year. As a reminder, these target dates are not a guarantee, but they provide insight into when we can possibly expect the regulations to be published. CUPA-HR’s government relations team will continue to monitor for any updates on the following regulations and others that may impact the higher education space.

    Department of Labor

    Wage and Hour Division — Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees

    According to the Fall 2023 Regulatory Agenda, the Department of Labor (DOL)’s Wage and Hour Division (WHD) has targeted April 2024 for release of the final rule to update the Fair Labor Standards Act’s overtime pay regulations. The final rule seeks to increase the minimum salary threshold required for white-collar professionals to maintain exempt status under the FLSA.

    On September 8, WHD released a Notice of Proposed Rulemaking (NPRM) to update the salary threshold. The NPRM increases the minimum salary threshold from its current level of $35,568 per year ($684 per week) to $60,209 annually ($1,158 per week), which amounts to a nearly 70% increase.* Additionally, WHD proposes to automatically increase the salary level every three years by tying the threshold to the 35th percentile of full-time salaried wages in the lowest wage census region. DOL indicated in the proposed rule that it is considering implementing an effective date in the final rule that could come as soon as 60 days after the final rule is published to the public.

    CUPA-HR was joined by 49 other higher education associations in submitting comments in response to the NPRM. In our comments, we raised concerns with the timing of this increase, the size of the proposed increase, the implementation of automatic updates, and the timeline for regulatory compliance that WHD anticipates. Our comments were informed by a CUPA-HR member survey, in which over 300 members provided feedback on their concerns with and thoughts about the proposal. For ongoing updates, visit CUPA-HR’s FLSA Overtime page.

    Wage and Hour Division — Employee or Independent Contractor Classification under the Fair Labor Standards Act

    The Fall 2023 Regulatory Agenda indicates that WHD anticipated releasing the FLSA independent contractor rule in November 2023. The final rule has been at the White House Office of Information and Regulatory Affairs (OIRA) for review since September 28, 2023, and once the agency finishes its review, the rule will be published.

    On October 13, 2022, the DOL published an NPRM to rescind the current method for determining independent contractor status under the FLSA. The current test, finalized by the Trump administration in 2021, has two core factors of control and investment with three additional factors (integration, skill and permanency) that are relevant only if those core factors are in disagreement. The Biden rule proposes a return to a “totality-of-the-circumstances analysis” of multiple factors in an economic reality test, including the following six factors, which are equally weighted with no core provisions:

    • The extent to which the work is integral to the employer’s business.
    • The worker’s opportunity for profit or loss depending on managerial skill.
    • The investments made by the worker and the employer.
    • The worker’s use of skill and initiative.
    • The permanency of the work relationship.
    • The degree of control exercised or retained by the employer.

    Employment and Training Administration — Revising Schedule A to Include Updating Occupations in Science, Technology, Engineering, and Mathematics (STEM)

    The regulatory agenda indicates that DOL’s Employment and Training Administration (ETA) aimed to issue a Request for Information (RFI) in November 2023. According to the notice in the agenda, ETA is seeking input from the public “on whether Schedule A serves as an effective tool for addressing current labor shortages, and how the Department may create a timely, coherent and transparent methodology for identifying STEM occupations that are experiencing labor shortages in keeping with its requirements under the Immigration and Nationality Act … to ensure the employment of foreign nationals does not displace U.S. workers or adversely affect their wages and working conditions.”

    The RFI was sent to OIRA for review before publication on November 11, 2023, and will likely be released to the public soon.

    Equal Employment Opportunity Commission

    Regulations to Implement the Pregnant Workers Fairness Act

    In December 2023, the Equal Employment Opportunity Commission (EEOC) plans to issue a final rule to implement the Pregnant Workers Fairness Act (PWFA). The rule will create a framework for the EEOC on how to enforce protections granted to pregnant workers under the PWFA. For a detailed analysis of the proposed rule on implementing the PWFA, please see CUPA-HR’s blog post.

    In December 2022, the PWFA was signed into law through the Consolidated Appropriations Act of 2023. The law establishes employer obligations to provide reasonable accommodations to pregnant employees so long as such accommodations do not cause an undue hardship on the business, and makes it unlawful to take adverse action against a qualified employee requesting or using such reasonable accommodations. The requirements of the law apply only to businesses with 15 or more employees.

    Unlike the other regulations with target dates, the PWFA final rule has a statutory deadline for publication, which is December 29, 2023. Given this upcoming deadline, we will likely see the EEOC publish this rule soon.

    Department of Education

    Office for Civil Rights — Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance

    According to the regulatory agenda, the Department of Education (ED) anticipates releasing the highly anticipated Title IX final rule in March 2024. The rulemaking would finalize the June 2022 NPRM to roll back and replace the Trump administration’s 2020 regulations while simultaneously expanding protections against sex-based discrimination to cover sexual orientation, gender identity, and pregnancy or related conditions.

    CUPA-HR filed comments in September 2022 in response to the NPRM. In our comments, we brought attention to the possible impact the proposed regulations could have on how higher education institutions address employment discrimination.

    The new March target deadline marks the third time ED has delayed the issuance of the Title IX final rule. The rule was originally targeted for release in May 2023, but ED subsequently pushed the target date back to October 2023 via a blog post, when it became clear that the department would not meet the May timeline. Since ED missed the October timeline, they have faced increased pressure from Congressional Democrats and other advocacy groups to publish the final rule as soon as possible. While it’s not a guarantee ED will be able to publish the final rule in March 2024, the increased pressure will certainly motivate the department to move quickly.

    CUPA-HR plans to hold a webinar to inform members of the final rule’s new requirements once the final rule has been published. Details to come.

    Office for Civil Rights — Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams

    Similar to the Title IX final rule above, ED plans to issue a final rule on student eligibility in athletic programs under Title IX in March 2024. The rule would finalize the NPRM that was released by the department in April 2023.

    Under the NPRM, schools that receive federal funding would not be permitted to adopt or apply a “one-size-fits-all” ban on transgender students participating on teams consistent with their gender identity. Instead, the proposal allows schools the flexibility to develop team eligibility criteria that serve important educational objectives, such as fairness in competition and preventing sports-related injuries. The department further explains that the eligibility criteria must take into account the sport, level of competition, and grade or education level of students participating, and the criteria would have to minimize harm to students whose opportunity to participate on a team consistent with their gender identity would be limited or denied.

    The NPRM received over 150,000 comments addressing support for and concerns with the proposal. ED must review all comments before issuing a final rule to implement these regulations, which is the likely cause of delay for both this rulemaking and the broader Title IX final rule.

    Department of Homeland Security

    U.S. Citizenship and Immigration Services — Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program

    On October 23, the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) issued a proposed rule that aims to improve the H-1B program by simplifying the application process, increasing the program’s efficiency, offering more advantages and flexibilities to both petitioners and beneficiaries, and strengthening the program’s integrity measures.

    Prompted by challenges with the H-1B visa lottery, USCIS has prioritized a proposed rule to address the system’s integrity. The proposed rule is aimed at strengthening the lottery registration process and preventing fraud, and it makes critical revisions to underlying H-1B regulations. For a detailed summary of what the H-1B proposal includes, see CUPA-HR’s blog post.

    The NPRM is open for public comment until December 22, 2023. The Fall 2023 Regulatory Agenda included the regulations, but it did not provide a timeline for issuing the final rule, likely because the comment period is still open for the NPRM.

    U.S. Citizenship and Immigration Services — Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements

    In April 2024, USCIS anticipates issuing a final rule to adjust the fees charged by the agency for immigration and naturalization benefit requests.

    USCIS published an NPRM on this issue in January 2023. The comprehensive proposal has implications for both employment-based and family-based filings, but certain provisions would have significant impacts for higher education employers. Specifically, the proposed rule includes a provision to fund the Asylum Program with employer petition fees, which would be a $600 fee paid by any employers who file either a Form I-129, Petition for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien Worker. Additionally, the proposed rule seeks to increase almost all employment-based and employment-based “adjacent” filing fees. For more information on the details of this proposed rule, see CUPA-HR’s blog post.

    On March 13, 2023, CUPA-HR joined the American Council on Education’s comments in response to the NPRM. The comments address higher ed-specific concerns with the proposal to increase fees for immigration and naturalization benefit requests, including concerns about the impact the increased fees will have on international scholars and institutions’ ability to hire nonimmigrant workers, including H-1B workers.

    U.S. Citizenship and Immigration Services — Petition for Immigrant Worker Reforms

    The regulatory agenda shows that USCIS plans to issue an NPRM in August 2024 that will “amend its regulations governing employment-based immigrant petitions in the first, second and third preference classifications.” According to the posting, the proposed rule would “codify current policy guidance and implement administrative decisions regarding successorship-in-interest and ability to pay; update provisions governing extraordinary ability and outstanding professors and researchers; modernize outdated provisions for individuals of extraordinary ability and outstanding professors and researchers; … implement reforms to ensure the integrity of the I-140 program; and correct errors and omissions.”

    U.S. Citizenship and Immigration Services — Modernizing Regulations Governing Nonimmigrant Workers

    In October 2024, USCIS plans to issue an NPRM to update employment authorization rules for dependent spouses of certain nonimmigrants and to increase flexibilities for nonimmigrant workers. CUPA-HR plans to monitor for any updates to this rule as it may apply to H-1B or other relevant nonimmigrant visas used by institutions.

    Department of State

    Pilot Program to Resume Renewal of H-1B Nonimmigrant Visas in the United States for Certain Qualified Noncitizens

    In February 2024, the Department of State plans to begin a pilot program to “resume domestic visa renewal for qualified H-1B nonimmigrant visa applicants who meet certain requirements.” The department will issue a notice in the Federal Register that will describe pilot program participation requirements and will provide “information on how those falling within the bounds of the pilot program may apply for domestic visa renewal.” The pilot program has been at OIRA since October 17, meaning the pilot notice could be published sooner than anticipated.

    * The discrepancy between our figure of $60,209 and the DOL’s preamble figure of $55,068 arises from DOL’s own projections based on anticipated wage growth. The DOL’s proposed rule is rooted in 2022 data (yielding the $55,068 figure), but a footnote in the NPRM confirms that the salary threshold will definitely change by the time the final rule is issued to reflect the most recent data. Our comments, aiming to respond to the most probable salary threshold at the time a final rule is released, references the DOL’s projected figure for Q1 2024, which is $60,209. We do not believe DOL will be able to issue a final rule before Q1 2024, so we are incorporating this projected figure into our response to the NPRM. In essence, our goal is to provide members with a clearer picture of the likely salary figure when the final rule comes into play.



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  • Proposed Changes to the H-1B Visa Program – CUPA-HR

    Proposed Changes to the H-1B Visa Program – CUPA-HR

    by CUPA-HR | November 9, 2023

    On October 23, 2023, U.S. Citizenship and Immigration Services (USCIS) issued a proposed rule that aims to improve the H-1B program by simplifying the application process, increasing the program’s efficiency, offering more advantages and flexibilities to both petitioners and beneficiaries, and strengthening the program’s integrity measures.

    Background

    The H-1B visa program is pivotal for many sectors, particularly higher education. It permits U.S. employers to employ foreign professionals in specialty occupations requiring specialized knowledge and a bachelor’s degree or higher or its equivalent. The program is subject to an annual limit of 65,000 visas, with an additional allocation of 20,000 visas reserved for foreign nationals who have earned a U.S. master’s degree or higher. Certain workers are exempt from this cap, including those at higher education institutions or affiliated nonprofit entities and nonprofit or governmental research organizations.

    Highlights of the Proposed Rule

    Prompted by challenges with the H-1B visa lottery, USCIS has prioritized a proposed rule to address the system’s integrity. The move comes after a surge in demand for H-1B visas led to the adoption of a lottery for fair distribution. However, with the fiscal year 2024 seeing a historic 758,994 registrations and over half of the candidates being entered multiple times, there was concern over potential exploitation to skew selection chances. This proposed rule is a direct response to strengthen the registration process and prevent fraud.

    Beyond addressing lottery concerns, the proposal makes critical revisions to underlying H-1B regulations. It seeks to formalize policies currently in place through guidance and tweak specific regulatory aspects.

    Amending the Definition of a “Specialty Occupation.” At present, a “specialty occupation” is identified as a job that requires unique, specialized knowledge in fields like engineering, medicine, education, business specialties, the arts, etc., and it typically mandates a bachelor’s degree or higher in a specific area or its equivalent. USCIS is proposing to refine the definition of a “specialty occupation” to ensure that the required degree for such positions is directly related to the job duties. The proposal specifies that general degrees without specialized knowledge do not meet the criteria, and petitioners must prove the connection between the degree field(s) and the occupation’s duties. The rule would allow for different specific degrees to qualify for a position if each degree directly relates to the occupation’s responsibilities. For example, a bachelor’s degree in either education or chemistry could be suitable for a chemistry teacher’s position if both are relevant to the job. The changes emphasize that the mere possibility of qualifying for a position with an unrelated degree is insufficient, and specific degrees must impart highly specialized knowledge pertinent to the role.

    Amending the Criteria for Specialty Occupation Positions. USCIS is proposing updates to the criteria defining a “specialty occupation” under the Immigration and Nationality Act. This proposal includes a clarification of the term “normally,” which, in the context of a specialty occupation, indicates that a bachelor’s degree is typically, but not always, necessary for the profession. USCIS is aiming to standardize this term to reflect a type, standard, or regular pattern, reinforcing that the term “normally” does not equate to “always.”

    Extending F-1 Cap-Gap Protection. USCIS is proposing to revise the Cap-Gap provisions, which currently extend employment authorization for F-1 students awaiting H-1B visa approval until October 1 of the fiscal year for which H–1B visa classification has been requested. The Cap-Gap refers to the period between the end of an F-1 student’s Optional Practical Training (OPT) and the start of their H-1B status, which can lead to a gap in lawful status or employment authorization. The new proposal seeks to extend this period until April 1 of the fiscal year for which the H-1B visa is filed, or until the visa is approved, to better address processing delays and reduce the risk of employment authorization interruption. To be eligible, the H-1B petition must be legitimate and filed on time. This change is intended to support the U.S. in attracting and maintaining skilled international workers by providing a more reliable transition from student to professional status.

    Cap-Exempt Organizations. USCIS is redefining which employers are exempt from the H-1B visa cap. The proposed changes involve revising the definition of “nonprofit research organization” and “governmental research organization” from being “primarily engaged” in research to conducting research as a “fundamental activity.” This proposed change would enable organizations that might not focus primarily on research, but still fundamentally engage in such activities, to qualify for the exemption. Additionally, USCIS aims to accommodate beneficiaries not directly employed by a qualifying organization but who still perform essential, mission-critical work.

    Deference. USCIS is proposing to codify a policy of deference to prior adjudications of Form I-129 petitions, as delineated in the USCIS Policy Manual, mandating that officers give precedence to earlier decisions when the same parties and material facts recur. This proposal, however, includes stipulations that such deference is not required if there were material errors in the initial approval, if substantial changes in circumstances or eligibility have occurred, or if new and pertinent information emerges that could negatively influence the eligibility assessment.

    Next Steps

    While this summary captures key elements of the proposed changes, our members should be aware that the rule contains other important provisions that warrant careful review. These additional provisions could also significantly impact the H-1B visa program and its beneficiaries, and it is crucial for all interested parties to examine the proposed rule in its entirety to understand its full implications.

    USCIS is accepting public comment on its proposal through December 22, 2023. CUPA-HR is evaluating the proposed revisions and will be working with other higher education associations to submit comprehensive comments for the agency’s consideration. As USCIS moves towards finalizing the proposals within this rulemaking, potentially through one or more final rules depending on the availability of agency resources, CUPA-HR will keep its members informed of all significant updates and outcomes.



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  • DHS to Temporarily Increase the Automatic Extension Period of Work Permits for Certain Visa Applicants – CUPA-HR

    DHS to Temporarily Increase the Automatic Extension Period of Work Permits for Certain Visa Applicants – CUPA-HR

    by CUPA-HR | May 4, 2022

    Effective May 4, U.S. Citizenship and Immigration Services (USCIS) announced a Temporary Final Rule (TFR) to increase the automatic extension period of expiring employment authorization documents (EADs) for certain renewal applicants from 180 days to 540 days.

    Specifically, the TFR applies to three groups of applicants in EAD categories currently eligible for the previous 180-day automatic extension of employment authorization and EAD validity. They are as follows:

    • Renewal applicants whose renewal Form I-765 application remains pending as of May 4, 2022, and whose EAD has not expired or whose current 180-day auto-extension has not yet lapsed.
    • New renewal applicants who file Form I-765 during the 18-month period following the rule’s publication to avoid a future gap in employment authorization and/or documentation.
    • Renewal applicants with a pending EAD renewal application whose 180-day automatic extension has lapsed and whose EAD has expired will be granted an additional period of employment authorization and EAD validity beginning on May 4, 2022, and lasting up to 540 days from the expiration date of their EAD.

    Categories that are eligible for the lengthened automatic extension can be found here and include refugees and asylees (a3 and a5), spouses of certain H-1B principal non-immigrants with an unexpired I-94 showing H-4 non-immigrant status (c26), and adjustment of status applicants (c9), among others.

    The TFR is part of a trio of efforts USCIS announced on March 29, 2022, to address the agency’s major backlogs and crisis-level processing delays. According to USCIS Director Ur M. Jaddou, “as USCIS works to address pending EAD caseloads, the agency has determined that the current 180-day automatic extension for employment authorization is currently insufficient,” and this temporary rule is necessary to “provide those non-citizens otherwise eligible for the automatic extension an opportunity to maintain employment and provide critical support for their families, while avoiding further disruption for U.S. employers.”

    CUPA-HR will continue to monitor the implementation of the new auto-extension period and keep members apprised of further developments.



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  • Biden Administration Releases Fall 2021 Regulatory Agenda – CUPA-HR

    Biden Administration Releases Fall 2021 Regulatory Agenda – CUPA-HR

    by CUPA-HR | January 10, 2022

    On December 10, the Biden administration issued the Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions (Regulatory Agenda), providing the public with insights on what various federal agencies expect to work on in terms of regulatory activity in the near- and long-term.

    In an effort to keep members apprised of upcoming noteworthy regulatory actions, CUPA-HR has read through the Regulatory Agenda and has flagged the following proposed activity:

    Department of Labor

    Wage and Hour Division — Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees

    In April 2022, the Department of Labor (DOL)’s Wage and Hour Division plans to issue a Notice of Proposed Rulemaking (NPRM) addressing overtime pay requirements for certain “white-collar” employees, including executive, administrative, and professional employees, currently exempt from the requirements under the Fair Labor Standards Act (FLSA). According to the Regulatory Agenda, one of the goals of the NPRM would be “to update the salary level requirement of the section 13(a)(1) exemption [under the FLSA].”

    Changes to overtime pay requirements have been implemented through regulations under both the Obama and Trump administrations. In May 2016, the Obama administration’s DOL issued a final rule increasing the salary threshold from $23,660 to $47,476 per year and imposed automatic updates to the threshold every three years. However, court challenges prevented the rule from taking effect and it was permanently enjoined in September 2017. After the Trump administration started the rulemaking process anew, in September 2019, DOL issued a new final rule raising the minimum salary level required for exemption from $23,660 annually to $35,568 annually. This final rule went into effect January 1, 2020, and it remains in effect today.

    DOL’s Statement of Regulatory Priorities, a component of the fall Regulatory Agenda that presents additional information about the most significant regulatory activities planned for the coming year, states that this proposed update will “ensure that middle class jobs pay middle class wages, extending important overtime pay protections to millions of workers and raising their pay.”  Given this statement, it is likely that we will see the Biden administration’s DOL attempt to increase the salary level in the NPRM to something closer to the Obama administration’s proposed level, if not higher.

    Employment and Training Administration — Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States

    In March 2022, DOL’s Employment and Training Administration (ETA) plans to issue a NPRM to establish “a new wage methodology for setting prevailing wage levels for H-1B/H-1B1/E-3 and PERM programs consistent with the requirements of the Immigration and Nationality Act.” The proposal will likely amend the Trump administration’s final rule that was scheduled to take effect on November 14, 2022, but was subsequently vacated by a federal court in June 2021. The new proposal, which is included in the Department’s Statement of Regulatory Priorities will take into consideration the feedback it received in response to a Request for Information (RFI) on data and methods for determining prevailing wage levels “to ensure fair wages and strengthen protections for foreign and U.S. workers”.

    CUPA-HR filed comments in opposition to the Trump administration’s regulations on the issue and in response to the Biden administration’s RFI.

    Occupational Safety and Health Administration — Improve Tracking of Workplace Injuries and Illnesses

    According to the Regulatory Agenda, the Biden administration’s Occupational Safety and Health Administration (OSHA) plans to release a NPRM to restore provisions of the May 2016 “Improve Tracking of Workplace Injuries and Illnesses” final rule. The Regulatory Agenda set December 2021 as the target date for release, but as of early January, the regulation is still pending review at the Office of Information and Regulatory Affairs.

    The proposal seeks “to amend [OSHA’s] recordkeeping regulation to restore the requirement to electronically submit to OSHA information from the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) for establishments that meet certain size and industry criteria.” In the Regulatory Agenda, OSHA notes that the current regulations only require electronic submissions from the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses), as the Trump administration’s 2019 final rule rescinded the requirements to electronically submit the OSHA Form 300 and OSHA Form 301.

    National Labor Relations Board

    Joint Employer

    In February 2022, the National Labor Relations Board (NLRB) is planning to release a NPRM to potentially amend the standard determining when two employers may be considered joint employers under the National Labor Relations Act. The new standard will revise the 2020 Trump Administration’s final rule, which reversed the Obama-era NLRB decision in the 2015 Browning-Ferris Industries case and established that an entity can only be a joint employer if it actually exercises control over the essential terms and conditions of another employer’s employees. While details of the Democratic-majority NLRB’s NPRM on joint employer status are up in the air, we would expect them to revise the current standard to look something more like the Obama-era decision.

    Department of Education

    Office for Civil Rights — Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance

    In April 2022, the Department of Education is planning to release a NPRM to amend the “regulations implementing Title IX (…) consistent with the priorities of the Biden-Harris administration,” such as the priorities set forth in Executive Order (EO) 13988, “Preventing and Combating Discrimination on the Basis of Gender Identity and Sexual Orientation” and EO 14021, “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation and Gender Identity.” This NPRM will revise the amendments the Trump administration made through the 2020 Title IX final rule.

    The Department of Education highlighted this new rulemaking in their Statement of Regulatory Priorities. The addition of the rulemaking to the priorities document and the accelerated expected release date of April 2022 from May 2022 as stated in the Spring 2021 Regulatory Agenda indicate that the agency is likely considering this as one of the top regulatory priorities above other proposed actions.

    Department of Homeland Security

    USCIS — Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program

    According to the Regulatory Agenda, the Department of Homeland Security (DHS)’s United States Citizenship and Immigration Services (USCIS) plans to release a NPRM in May 2022 to “amend its regulations governing H-1B specialty occupation workers and F-1 students who are the beneficiaries of timely filed H-1B cap-subject petitions.” The NPRM will specifically propose to “revise the regulations relating to ‘employer-employee relationship’ and provide flexibility for start-up entrepreneurs; implement new requirements and guidelines for site visits including in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data; provide flexibility on the employment start date listed on the petition (in limited circumstances); address “cap-gap” issues; bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system; and clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions.”

    ICE — Optional Alternative to the Physical Examination Associated With Employment Eligibility Verification (Form I-9)

    According to the Regulatory Agenda, DHS is planning to issue a NPRM in June 2022 to “revise employment eligibility verification regulations to allow the Secretary to authorize alternative document examination procedures in certain circumstances or with respect to certain employers.”

    Since the outset of the COVID-19 pandemic, DHS has provided temporary flexibility in the Form I-9 verification process to allow for remote inspection of Form I-9 documents in situations where employees work exclusively in a remote setting due to COVID-19-related precautions. While that guidance is only temporary, DHS issued a Request for Public Input (RPI) on October 26, 2021 to determine whether those flexibilities should be kept in place permanently. It is possible that DHS will use that feedback to develop and implement this NPRM.

    CUPA-HR has engaged with DHS on the Form I-9 flexibilities through the pandemic. In December, CUPA-HR sent a letter to DHS requesting the Form I-9 flexibilities be extended past December 31, 2021. DHS announced soon after that the flexibilities would be extended until April 30, 2022. Additionally, CUPA-HR submitted comments in response to the RPI based on a recent survey detailing members’ experiences with the Form I-9 verification process flexibilities.

    CUPA-HR will keep members apprised of these proposed regulations and others as they are introduced in the coming year.



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