On October 20, 2023, the Department of Homeland Security (DHS) issued a notice of proposed rulemaking designed to provide much-needed updates to the H-1B specialty occupation program. Per DHS, the proposed rule will “modernize the H-1B specialty occupation worker program by streamlining eligibility requirements, improving program efficiency, providing greater benefits and flexibilities for employers and workers, and strengthening integrity measures.”

The H-1B nonimmigrant visa program permits U.S. employers to temporarily employ foreign workers in specialty occupations, which are defined by statute as occupations that require highly specialized knowledge and a bachelor’s or higher degree in the specific specialty, or its equivalent. The H-1B program is highly regulated and quota-based; demand for H-1B visas significantly outpaces the number of available visas each year.

Highlights of the proposed rule include:

• Streamlining eligibility requirements – the criteria for specialty occupation positions would be revised 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 codifies that adjudicators generally should defer to a prior determination when no underlying facts have changed at time of a new filing;
• Providing greater benefits and flexibilities for employers and workers – certain exemptions to the H-1B cap would be expanded for certain nonprofit entities or governmental research organizations as well as beneficiaries who are not directly employed by a qualifying organization. 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 rising entrepreneurs; and
• Strengthening integrity measures – in addition to changing the selection process, misuse and fraud in the H-1B registration process would be reduced by prohibiting related entities from submitting multiple registrations for the same beneficiary. The rule would also codify USCIS’ authority to conduct site visits and clarify that refusal to comply with site visits may result in denial or revocation of the petition.

The notice of proposed rulemaking was published in the Federal Register on October 23, 2023. A 60-day comment period is now open, and at this time the rule remains a proposal, and not final.

If you have questions about the H-1B program or the proposed rulemaking, reach out to the attorneys at CYA to schedule a consultation!