Tag: H1B
-
DHS Issues Final H-1B Modernization Rule
by CUPA-HR | December 18, 2024
On December 18, the Department of Homeland Security (DHS) published a final rule to modernize the H-1B visa program, finalizing changes first proposed in October 2023. The rule will take effect on January 17, 2025, introducing significant updates aimed at clarifying the requirements of the H-1B program and improving program efficiency, providing greater benefits and flexibility for petitioners and beneficiaries, and strengthening program integrity measures.
The final rule responds to comments from a variety of stakeholders, including concerns raised by CUPA-HR and others in a multi-sector joint comment letter signed by 74 organizations and a higher education-focused letter led by the American Council on Education (ACE). Both letters advocated for changes to the definition of a “specialty occupation” and other key areas to ensure the regulations better align with workforce needs. The final rule incorporates feedback from stakeholders and aims to provide clarity while maintaining program integrity.
Below are highlights of some noteworthy provisions in the final rule and next steps.
Revised Definition and Criteria for H-1B Specialty Occupations
The final rule modifies the definition of an H-1B specialty occupation in response to public comments, including those CUPA-HR signed onto in a multi-sector joint comment letter and a higher education-focused letter. DHS clarified that a degree or its equivalent must be “directly related” to the duties of the position, with “directly related” defined as having a logical connection between the degree and the job duties. This change addresses concerns raised in comments that the proposed language could have been misinterpreted to require adjudicators to focus solely on a beneficiary’s specialized studies.
The rule also permits a range of qualifying degree fields, provided that each field is directly related to the position’s duties. Additionally, DHS removed references to specific degree titles such as “business administration” and “liberal arts” to avoid undue reliance on degree titles. This recognizes that degree titles can vary between institutions and evolve over time, emphasizing the relevance of the degree’s content rather than its name. These changes align with the requests made in the joint comment letter, ensuring that the definition of a specialty occupation is practical and reflective of modern workforce realities.
Codification of the Deference Policy
The final rule codifies DHS’s current deference policy, providing greater clarity on how U.S. Citizenship and Immigration Services (USCIS) adjudicators should approach petitions involving the same parties and underlying facts. Under the codified policy, adjudicators are generally required to defer to a prior USCIS determination of eligibility when adjudicating a subsequent Form I-129, Petition for Nonimmigrant Worker. However, deference will not apply if a material error in the prior approval is discovered, or if new material information or a material change impacts the petitioner’s or beneficiary’s eligibility.
Elimination of the Itinerary Requirement
The final rule eliminates the itinerary requirement, which previously required petitioners to provide an itinerary detailing the dates and locations of services or training when filing Form I-129. This change addresses concerns that the requirement was largely duplicative of other information already provided in the petition. Eliminating this requirement simplifies the filing process, reducing administrative burdens for petitioners. The change is particularly beneficial for individuals in roles such as medical residencies under H-1B, where work may occur at multiple sites, as it removes unnecessary procedural hurdles without impacting USCIS’s ability to assess eligibility.
Expanded H-1B Cap Exemptions for Nonprofit and Governmental Research Organizations
The final rule modestly broadens the scope of H-1B cap exemptions for nonprofit and governmental research organizations, as well as nonprofits affiliated with institutions of higher education. The revised definitions recognize that qualifying organizations may have multiple fundamental activities or missions beyond just research or education. Under the updated regulations, organizations can qualify for a cap exemption if research or education is one of their fundamental activities, even if it is not their primary activity or mission. These changes better align the cap exemption criteria with the diverse roles and structures of modern nonprofit and governmental entities.
Enhanced Cap-Gap Protections for F-1 Students
The final rule extends cap-gap protections for F-1 students transitioning to H-1B status. Under the new provision, F-1 students who are beneficiaries of timely filed, nonfrivolous H-1B petitions will receive an automatic extension of their F-1 status and employment authorization through April 1 of the following calendar year. This extension provides up to six additional months of status and work authorization, reducing the risk of lapses in lawful status or employment eligibility while awaiting approval of the change to H-1B status.
Codification of Site Visit Authority
The final rule codifies and strengthens the USCIS site visit program, which is administered by the Fraud Detection and National Security (FDNS) unit. DHS clarifies that refusal to comply with a site visit may result in the denial or revocation of a petition. Additionally, the rule explicitly authorizes DHS to conduct site visits at various locations connected to the H-1B employment, including the primary worksite, third-party worksites, and any other locations where the employee works, has worked, or will work. This provision formalizes long-standing practices and enhances USCIS’s ability to monitor compliance with H-1B program requirements.
Next Steps
The rule takes effect on January 17, 2025, just days before the next presidential inauguration. While it is unclear if the incoming Trump administration will seek to modify or withdraw the regulation, the codification of key provisions, such as the deference policy, makes them more difficult to rescind without formal rulemaking.
Employers should also prepare for the required use of a new edition of Form I-129, Petition for a Nonimmigrant Worker, on the rule’s effective date. Because there will be no grace period for accepting prior editions of the form, employers should review the preview version, which will be published soon on uscis.gov, to prepare for the transition.
-
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.
-
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.
