Tag: Immigration Updates & FAQs

With the second round of the H-1B cap lottery just completed, the United States Citizenship and Immigration Service (USCIS) has now released statistics for this year’s H-1B cap selections as well as statistics on H-1B alternatives such as O-1A and EB-2 NIW cases.

USCIS reported that the total number of unique H-1B beneficiaries this year for fiscal year (FY) 2025 was approximately 442,000. USCIS selected 114,017 beneficiaries, resulting in 120,603 selected registrations in the initial selection, and an additional 13,607 beneficiaries in the second lottery, resulting in 14,534 selected registrations, for an overall total of 135,137 (about 30%) selected registrations for FY 2025. Trends on H-1B alternatives show an upward trend in filings and favorable approval rates, particularly for jobs in STEM fields.

Background

The H-1B program allows U.S. employers to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.  Currently there is an annual numerical limit of 65,000 visas each fiscal year (known as the “Regular cap”). There are an additional 20,000 H-1B visas available for beneficiaries with a master’s degree or higher from a U.S. institution of higher education (known as the “Master’s cap”). The Regular cap is further reduced by carve-outs for the H-1B1 visa for nationals of Chile and Singapore under the provisions of free trade agreements between the U.S. and each country, leaving the actual number of Regular cap H-1B visas that are available at 58,200.

Each year, USCIS selects more registrations than there are visa numbers available based on its projections of how many selected employers will file petitions and receive USCIS approval.

The current limit on H-1B visas was set in 1990 when the H-1B category was created by Congress. The American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) made significant changes to policy and procedures for the H-1B classification, including providing temporary increases to the numerical limits. Under ACWIA, the number of available H-1B visas increased to 115,000 in FY 1999 and 2000. AC21 further increased the number of available visas to 195,000 for FY 2001, FY 2002, and FY 2003. In FY 2004, the H-1B cap reverted to 65,000 visas per fiscal year and remains at that level. Except for the special allocation of visas for the Master’s cap, established in 2006, there have been no increases to the number of H-1B visas that are available each year since the sunset of the ACWIA and AC21 provisions.

Key Takeaways from this H-1B Cap Season

The number of eligible registrations dropped by a noteworthy 38.6%, a welcome correction under the new beneficiary-centric selection process. Under the new procedures implemented by the Improving the H-1B Registration Selection Process and Program Integrity rule, now each unique beneficiary is entered into the selection process once, regardless of how many registrations have been submitted on their behalf. This measure was enacted as an attempt to combat fraud in the process that was seen in prior years when multiple employers would jointly file registrations for the same beneficiary to gain an unfair advantage in selection rates. Overall, there was an average of 1.06 registrations per beneficiary in FY 2025 as compared to 1.70 for FY 2024.

The number of unique employers submitting registrations in FY 2025 (approximately 52,700) was comparable to the number in FY 2024 (approximately 52,000). The number of unique beneficiaries in FY 2025 (approximately 442,000) was slightly lower than the number in FY 2024 (approximately 446,000).

Good News on H-1B Visa Alternatives

Due to the limited numbers of H-1B visas available, U.S. employers are driven to leverage alternatives to the H-1B classification in order to retain talent in their workforce.

USCIS has also released statistics on some of the widely-used alternatives to the H-1B visa category, including the O-1A visa for individuals with extraordinary ability and the National Interest Waiver (NIW) immigrant visa petition, which provides a fast track to U.S. permanent residence by bypassing the PERM labor certification process. Generally, the results are positive:

• O-1A filings have doubled since 2018, with an overall approval rate at 92% for FY 2023.
• National Interest Waiver (NIW) immigrant visa petition filings have quadrupled since 2018, and represented 43% of all I-140 EB-2 filings in FY 2023. The approval rate for NIW cases was at 79% in FY 2023.

The USCIS release further analyzes statistics for these petition types filed on behalf of individuals working in science, technology, engineering, or math (STEM) fields. Following on policy guidance issued by USCIS in January 2022 that set forth standards for O-1 and NIW adjudications for STEM workers and emphasized the prioritization of STEM NIW beneficiaries, or O-1, NIW there has been a general improvement in approval rates across both categories.

• STEM O-1A approvals have doubled since 2018. The approval rate has increased by approximately 78% since FY 2021, although there was a slight decrease in the number of approvals from FY 2022 to FY 2023.
• STEM NIW filings have tripled since 2018 and there was a marked increase from 13,550 cases receipted in FY 2022 to 20,950 cases receipted in FY 2023. The USCIS data shows that the vast majority of these cases filed in FY 2022 and FY 2023 were approved.

What Employers Need to Know

The H-1B program, which is based on numerical limits set over 30 years ago, still remains terribly short of meeting the needs of the U.S. economy in the global competition for talent, particularly in STEM fields. While it is welcoming to see positive trends in O-1A extraordinary ability petitions and NIW immigrant visa petitions, these classifications are only available to select foreign nationals who have achieved a high level of acclaim in their field of endeavor or are working in a limited number of industries.

For more information, please contact your designated Gibney representative or email info@gibney.com.

U.S. Citizenship and Immigration Services (USCIS) provided updated guidance on the eligibility requirements for the International Entrepreneur Rule (IER). Starting on October 1, 2024. USCIS will increase investment and revenue thresholds for inflation, as permitted by existing regulations which allow for increases every three (3) years.

Background

The Obama/Biden Administration introduced the International Entrepreneur Rule in 2017 for high-potential startups. The rule allows the Department of Homeland Security (DHS) to grant a period of authorized stay (parole) to noncitizen entrepreneurs on a case-by-case basis.

Key Elements of the Entrepreneur Rule:

• Entrepreneurs may be either living abroad or already in the US, and must own at least 10% of the US startup business
• Start-up entities must have been formed in the US within the past five years
• Spouses may apply for employment authorization after being paroled into the US (children are not eligible for employment authorization)
• Entrepreneurs may be granted an initial parole period of up to 2½ years
• Parole may be renewed for an additional 2½ years, for a maximum of 5 years
• Up to three entrepreneurs are eligible per startup

Increase to Investment/Revenue Thresholds

Starting on October 1, 2024. USCIS will increase investment and revenue thresholds for inflation.

For new applications, entrepreneurs must show at least $311,071 (up from $264,147) in investment from qualified US investors or at least $124,429 (up from $105,659) in qualified government awards or grants. If the startup only partially meets this criteria, alternate evidence of potential for rapid growth and job creation may be presented.

For a second period of authorized stay, entrepreneurs must show that the startup has received at least $622,142 (up from $528,293) in qualified investments, government grants or awards, created at least five qualified jobs, or reached at least $622,142 (up from $528,293) with an average of at least 20% in annual revenue growth.

The application fee will not increase.

New Criteria for Qualified Investors

USCIS also updated the criteria for qualified investors, requiring investors to have a history of substantial investment in successful startups.

The individual/organization must have made investments in startup entities of at least $746,571 (up from $633,952) in total within the last five years. After such investment, at least two of the startup entities must have created at least five qualified jobs or generated at least $622,142 (up from $528,293) in revenue with annual revenue growth of at least 20%.

Backlog Resolution

USCIS has indicated that as of May 2024, all applications have either been approved, denied or issued an RFE, and there is no backlog.

For questions, please contact your Gibney representative or email info@gibney.com.

USCIS announced today that it completed the second H-1B cap lottery for fiscal year (FY) 2025 H-1B cap. All employers with selected registrations have been notified. Employers with selected registrations from the second lottery may file an H-1B petition for the beneficiary of a selected registration during the 90-day period from August 8, 2024 to November 7, 2024.

USCIS did not conduct a second selection for the advanced degree exemption (the master’s cap).

What’s Next

• Employers with selected registrations will see updates in their myUSCIS accounts, including a selection notice and details of when and where to file the H-1B cap petition.
• Only employers with selected registrations may file H-1B cap-subject petitions for FY 2025 and only for the beneficiary named in the applicable selected registration notice; no substitution of beneficiaries is permitted.
• An H-1B cap-subject petition for a selected registration must be properly filed within the filing period specified on the relevant registration selection notice.
• Registration selection only indicates that employers are eligible to file H-1B cap-subject petitions; it does not signify that the petition will be approved.
• Petitioners filing H-1B cap-subject petitions must submit evidence and establish eligibility for approval based on existing statutory and regulatory requirements.

Important Filing Reminders

• As of April 1, 2024, USCIS adjusted feesfor most immigration applications and petitions.
• The new 04/01/24 edition of Form I-129, Petition for a Nonimmigrant Worker must be used.
• A final premium processing fee rulethat increased the filing fee for Form I-907, Request for Premium Processing Service took effect February 26, 2024.

Additional Information

USCIS has reported that during the registration period for the FY 2025 H-1B cap, it saw a significant decrease from FY 2024 in the total number of registrations submitted and, more importantly, in the number of eligible registrations submitted, returning the submission rates to FY 2023 levels. This drop was attributed to USCIS’s implementation of a new selection process this year to combat abuse of the H-1B registration process which took place in FY 2024.

For more information, please contact your designated Gibney representative or email info@gibney.com

 

USCIS has announced that it will soon conduct a second round of H-1B cap lottery selection for fiscal year (FY) 2025 H-1B cap from the previously submitted registrations. USCIS has not indicated when the lottery will take place, but stated that all employers with selected registrations from the second lottery will be notified through their USCIS online accounts. Employers with selected registrations will be able to file an H-1B petition for the beneficiary of a selected registration during the 90-day period to be specified by USCIS.

USCIS will not be conducting a second selection for the advanced degree exemption (the master’s cap), as this cap already has been met. However, the second round of selection for the H-1B cap will include registrations that were eligible for the master’s cap as well as the regular cap.

As previously reported, USCIS conducted its initial H-1B cap lottery in March 2024, and selected employers had a 90-day window during which to file H-1B cap petitions for selected beneficiaries. A second lottery selection will be conducted because the number of H-1B petitions ultimately submitted and approved during the initial H-1B filing period were not sufficient to meet the annual statutory H-1B cap. H-1B cap registrations that were not selected in the initial lottery remained in a reserve and the second lottery will be conducted from this reserve.

WHAT THIS MEANS FOR EMPLOYERS AND FOREIGN NATIONALS:

• Employers with selected registrations will see updates in their myUSCIS accounts, including a selection notice and details of when and where to file the H-1B cap petition.
• Only employers with selected registrations may file H-1B cap-subject petitions for FY 2025 and only for the beneficiary named in the applicable selected registration notice; no substitution of beneficiaries is permitted.
• An H-1B cap-subject petition for a selected registration must be properly filed within the filing period to be specified on the relevant registration selection notice.
• Registration selection only indicates that employers are eligible to file H-1B cap-subject petitions; it does not signify that the petition will be approved.
• Petitioners filing H-1B cap-subject petitions must submit evidence and establish eligibility for approval based on existing statutory and regulatory requirements.

For more information, please contact your designated Gibney representative or email info@gibney.com.

USCIS has extended the fiscal year 2025 (FY 2025) H-1B cap registration period. The new deadline to submit cap registrations is Monday, March 25, 2024 at noon Eastern Daylight Time. The extension comes after employers and their legal representatives encountered numerous technical problems with the reconfigured USCIS electronic registration system, preventing the submission and payment of registrations.

Registration commenced March 6, 2024, and was supposed to close at Noon on March 22. Employers intending to file H-1B cap petitions  now have a few extra days to complete registrations.  Employers must still use  their USCIS online accounts to submit registrations by the March 25 deadline.  Despite the extended registration period, USCIS still expects to conduct the random selection process and notify selected registrants by March 31, 2024.

Gibney will provide relevant updates as announced.  General information about FY 2025 H-1B cap registration process is available  here.  For additional information, please contact you designated Gibney representative or email info@gibney.com.

U.S. Citizenship and Immigration Services (USCIS) will conduct its annual electronic registration process for the Fiscal Year (FY) 2025 H-1B cap from March 6, 2024 to March 22, 2024.

This year USCIS is implementing changes to the cap registration process, cap selection process, and post-selection petition filing process.

As in prior years, employers should start planning for cap registration now by identifying foreign nationals they intend to register for the H-1B cap lottery.

GENERAL OVERVIEW

• Cap-subject U.S. employers intending to sponsor foreign nationals for H-1B status must first register each intended beneficiary electronically with USCIS during the cap registration period held in March.
• The current cap registration fee is $10 for each individual registered. The fee is solely for registration of the intended beneficiary.
  • The fee is not refunded if the registration is not selected, and it is not applied to the H-1B petition filing fee if a petition is ultimately filed for a selected beneficiary.
• The number of registrations submitted are expected to exceed the number of H-1B visas available under the annual statutory quota.
• There will be a random selection process once the initial registration period closes in March.
• After USCIS conducts the random selection process, it will notify employers of selected beneficiaries. Employers may only sponsor H-1B cap petitions for individuals selected through the registration process; no substitution of beneficiaries is permitted.
• After registration selection, employers will have a 90-day period during which they may file H-1B cap petitions for selected beneficiaries.
• The 90-day H-1B cap petition filing period is expected to start no later than April 1, 2024.
• If by the end of the first filing window (June 30, 2024) USCIS has not received enough H-1B petitions to reach the annual quota, USCIS may conduct a second lottery from the pool of previously unselected registrations. USCIS will then designate subsequent filing periods until all H-1B visas are allocated to reach the annual statutory quota.

HIGHLIGHTS

• In completing the registration, employers must identify whether the intended beneficiary qualifies for the H-1B visa pursuant to either the advanced degree cap (reserved for individuals holding a U.S. master’s degree or higher in a field of study related to the offered position) or the standard H-1B cap (reserved for individuals holding a Bachelor’s degree or higher in a field of study related to the offered position).
• Employers may register multiple individuals at once, using a single online “batch” submission.
• Employers may only submit one registration per intended beneficiary in any fiscal year. If an employer registers an individual more than once in the same fiscal year, all registrations submitted by that employer for that individual will be invalidated.
• The employer’s authorized legal representative may prepare and submit cap registrations for the employer.

WHAT SHOULD EMPLOYERS DO NOW?

Employers should work with legal counsel now to identify current or prospective employees who may require an H-1B petition to work in the U.S., and to take appropriate steps to ensure timely online registration of identified candidates.

Potential beneficiaries for H-1B cap registration include, but are not limited to:

• New hires or candidates outside the U.S. who do not currently hold a valid U.S. work visa
• F-1 students completing a qualifying course of study or F-1 students currently working in the U.S. pursuant to Optional Practical Training (OPT) or STEM OPT
• J-1 interns/trainees who are currently working in the U.S. pursuant to a DS-2019 exchange visitor program
• L-1, TN, E-1, E-2, E-3, O-1, and/or other nonimmigrant visa holders who wish to change to H-1B status in the future
• Dependent spouses of current nonimmigrant visa holders who may lack work authorization.

ADDITIONAL INFORMATION

Not All H-1B Petitions are Subject to the Cap
Certain individuals and employers are not subject to the annual H-1B cap or cap registration, including:

• Individuals who currently hold H-1B status and who were previously counted against the cap. In most instances, individuals who were counted against the cap in a previous fiscal year are not again subject to the annual cap. This may include petitions:
  • to extend status for current H-1B visa holders;
  • to amend H-1B status due to changes role or location changes for current H-1B workers;
  • to change H-1B employers; and,
  • for concurrent H-1B employment with an additional employer.
• Individuals who are citizens/nationals of Singapore and Chile may instead be eligible for the H-1B1 visa.
• Cap exempt organizations. H-1B cap petitions filed for employment at institutions of higher education or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations, are cap-exempt. H-1B petitions for employment at these institutions are not subject to an annual quota and may be filed any time throughout the year.

H-1B Categories and Annual Quotas

Cap-subject H-1B petitions generally fall within two categories:

• “Standard” petitions. The minimum educational requirement for a standard H-1B petition is a Bachelor’s degree or professionally evaluated experience equivalent. Standard cases are capped at 65,000 visas annually with approximately 6,800 reserved for nationals of Chile and Singapore.
• “Advanced degree” or “Master’s cap” petitions. The minimum educational requirement for an advanced degree H-1B petition is a Master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree holders each fiscal year.

As a reminder, as previously reported, this year USCIS is implementing new organizational accounts, a new selection process, new petition forms, and new petition filing fees.  Please contact immigration counsel now to ensure you are well-positioned for H-1B cap season.

Gibney will provide additional updates as they are announced. In the interim, additional information is available here.  If you have questions about H-1B cap or if you require assistance with cap registration, please contact your Gibney representative or email info@gibney.com.

USCIS announced  that the initial electronic registration period for the fiscal year (FY 2025) H-1B cap season will open at noon Eastern on March 6, 2024 and will run through noon Eastern on March 22, 2024.

USCIS also announced important updates to the H-1B cap program this year, including

• the replacement of registrant accounts with organizational accounts;
• an imminent final rule changing the H-1B cap selection process; and,
• a final rule raising petition filing fees. The filing fee rule will not impact the current registration fee of $10 for the March registration period, but will impact H-1B filing fees for selected registrations.

FY 2025 H-1B CAP DETAILS

• Cap-subject H-1B employers intending to sponsor H-1B workers must first register each intended beneficiary electronically with USCIS during the designated registration period (March 6 through March 22).
• While USCIS announced a new fee schedule, the cap registration fee will remain $10 for the March registration cycle.
• If the number of registrations received by March 22 exceeds the number of H-1B visas available under the annual quota as expected, USCIS will randomly select a sufficient number of registrations projected to reach the FY 2025 H-1B cap.

NEW THIS YEAR:

• USCIS is implementing “organizational” accounts to replace “registrant” accounts. US employers and their legal representatives must use the new organizational accounts to submit cap registrations this year. Intending registrants will be able to create new organizational accounts beginning at noon Eastern on February 28, 2024. Employers with existing registrant accounts are able to upgrade to an organizational account without creating a new account. It is important to work with immigration counsel to ensure the organizational account is properly configured.
• USCIS has begun implementation of a series of rules to the amend the H-1B program, as previously summarized, starting with the H-1B cap selection process. Specifically, USCIS will implement a beneficiary-centric process for registration selection. USCIS will require registrants to provide valid passport information (or valid travel document information) for each beneficiary.  Each beneficiary must only be registered under one passport/travel document. The passport must be the one the beneficiary intends to use for the H-1B visa.
• The new USCIS rule raising fees for H-1B and other petitions will take effect April 1, and thus will impact H-1B cap petition filings for selected registrations. As of April 1, the Form I-129 filing fee for an H-1B petition filed by a for-profit employer with more than 25 employees will increase 70%, from $460 to $780. (This does not include the ACWIA and Fraud Fee).   A USCIS FAQ on the new fee rule is available here.
• USCIS will publish a new edition of Form I-129 which must be used for H-1B petition filings on and after April 1, 2024.
• USCIS intends to allow online filing of Form I-129 for H-1B cap petitions and some other petitions. However, USCIS has yet to provide detailed information about the protocol for online filings and how these will integrate with the newly formed organizational accounts. Employers may continue to submit paper Form I-129 petitions, including H-1B cap petitions. Paper filings will be transitioned from USCIS Service Centers to USCIS lockbox filings.
• USCIS will allow start date flexibility for certain H-1B cap-subject petitions, allowing employers to select a start date that is after October 1 of the relevant fiscal year in some instances.
• The new rule codifies and strengthens the authority of USCIS deny or revoke H-1B petitions where the underlying registration contains a false attestation or is otherwise invalid.

AS BEFORE:

• Employers may file an H-1B cap petition only for the beneficiary named in the selected registration; no substitutions are permitted.
• USCIS expects to conduct the random selection and notify employers of selected registrations by March 31, 2024.
• After the first round of selection, employers will have a 90-day window during which to file H-1B cap petitions for the beneficiary named in the selected registration. The petition filing period is expected to start no later than Monday, April 1, 2024.
• If by the end of the first 90-day filing window USCIS has not received enough petitions to reach the annual quota/H-1B cap, USCIS may designate subsequent filing windows until the H-1B statutory quota is reached.

CONCLUSION

Given the many changes to the H-1B cap registration and H-1B petition filing process this year, including the need to establish organizational accounts to submit registrations, it is more important than ever to work closely with immigration counsel to ensure cap registrations are timely and properly submitted and that filed H-1B petitions meet all new procedural requirements.  Moreover, USCIS is expected to publish additional rule(s) that will substantively alter the H-1B visa program. To ensure that you are “cap ready” and up-to-speed on the most recent changes, please contact your designated Gibney representative, or email info@gibney.com.

 

 

The Office of Information and Regulatory Affairs (OIRA) cleared a rule that will allow limited stateside H-1B visa renewal.  As previously reported,  the proposed pilot program will allow 20,000 eligible participants, including Indian citizens and nationals of countries that do not require a visa reciprocity fee, to renew their H-1B visas without leaving the United States. The OIRA’s clearance of the rule on December 15, 2023 overcame the last regulatory obstacle before official publication.

A final notice with the precise program details regarding eligibility and operational aspects has not yet been published in the Federal Register but is expected by the end of December 2023. Implementation of the stateside H-1B renewal pilot is expected to begin sometime in January 2024.

Gibney will continue to monitor advancement of the H-1B pilot program and will provide updates when available.  For additional information, please contact your designated Gibney representative or email info@gibney.com

 

The U.S. Department of Labor (DOL) will solicit public input on expanding its list of Schedule A occupations eligible for streamlined immigration processing to include designated jobs in Science, Technology, Engineering, and Mathematics (STEM) fields. The action comes pursuant to the Biden Administration’s Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence, which charges federal agencies to use existing legal authority to expand the ability of highly skilled immigrants with expertise in critical areas to study, stay, and work in the U.S. by modernizing and streamlining visa criteria.

WHAT IS SCHEDULE A?

Most employment-based sponsorship for U.S. permanent resident status requires a U.S. employer to conduct a labor market test and request DOL certification that there are no qualified U.S. workers available for the offered position. Obtaining DOL labor certification entails a costly recruitment campaign, and the process currently takes at least 1.5 years to complete, often longer.   For certain occupations, described in 20 CFR § 656.5 – Schedule A, DOL has predetermined that there are not sufficient U.S. workers who are able, willing, qualified, and available to fill jobs.  Sponsoring employers seeking to fill a Schedule A position may by-pass the labor market test because DOL has pre-certified the labor shortage. Employers may petition directly to U.S. Citizenship and Immigration Services (USCIS) to sponsor an employee for permanent resident status.

Current Schedule A occupations include registered nurses and physical therapists.  The Schedule A list has not been updated in more than 30 years. Updating the Schedule A list does not require Congressional action or legislation.

WHAT DO EMPLOYERS NEED TO KNOW?

DOL is expected to publish additional information seeking comments about the proposed expansion of Schedule A by next month.  U.S. employers and other interested stakeholders will then have an opportunity to comment on the proposed expansion, identifying hard-to-fill, shortage occupations that should be pre-certified. Commentors may suggest any occupation that is hard to fill, and need not limit proposals to technology or STEM positions.  The expectation is that DOL could publish a revised Schedule A list of occupations in the first half of 2024.

Once implemented, employers seeking to sponsor a foreign national for a designated Schedule A occupation will not be required to undertake an extensive recruitment campaign to test the U.S. labor market. However, employers will still be required to obtain a Prevailing Wage Determination from DOL to ensure that hiring a foreign national into the position does not adversely impact wages and working conditions for U.S. workers.  Ideally, employers will be able to more quickly staff hard-to-fill jobs. Foreign nationals employed in STEM occupations will also benefit from getting permanent resident petitions on file with USCIS more quickly.

Gibney will continue to monitor expansion of Schedule A and will provide updates when they become available.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

On October 23, 2023, the U.S. Department of Homeland Security (DHS) issued a notice of proposed rulemaking (NPRM) to amend its H-1B regulations. The proposal also includes provisions that would change the H-1B cap registration and selection process.

If implemented, the NPRM would:

• Address H-1B cap registration abuse by changing the way USCIS selects registrations. Under the proposed rule, USCIS would select registration by unique beneficiary to help ensure that each beneficiary has the same chance of being selected.
• Allow automatic extensions of F-1 cap-gap status from the current October 1 to April 1 of the fiscal year for which H-1B status is requested.
• Clarify the definition and qualifying criteria for what constitutes an H-1B specialty occupation.
• Codify USCIS policy to give deference to prior petition approval where there is no material change to the underlying facts of the prior petition.
• Provide more flexibility for nonprofit and government research organizations to sponsor cap-exempt H-1B petitions.

The Details

In advancing the rule, DHS aims to improve efficiencies, increase program benefits and flexibility, and strengthen the integrity of the H-1B program.

Modernize and Create Efficiencies

The NPRM

• Revises the regulatory definition for an H-1B specialty occupation to codify that a range of degrees (fields of study) may qualify an individual for a specialty occupation, though there must be a direct relationship between the required degree field(s) and the position duties.
  • A general degree requirement (e.g., a degree in business administration or liberal arts degree) without specialized studies is insufficient to qualify for an H-1B.
  • A software developer position requiring a degree in any field of engineering would not generally satisfy the requirement that the position requires the application of a body of highly specialized knowledge and a degree in a specialty field.
• Clarifies that, for purposes of establishing that a position is a specialty occupation, the qualifying criterion – a bachelor’s degree is normally required for the position – does not mean that a bachelor’s degree is “always” required.
  • This reflects current USCIS practice, but the prior administration frequently took the position that “normally” meant “always,” issuing requests for evidence and denying petitions accordingly. This provision is intended to standardize adjudications.
• Clarifies that an amended or new petition must be filed when there is a material change to the conditions of employment, including following the filing of a new Labor Condition Application (LCA) due to a change in an H-1B worker’s place of employment. The amendment must be filed before the change takes place.
• Codifies and clarifies the policy of giving deference to prior petition approvals if there have been no material changes in the underlying facts of the prior petition.
  • This provision would apply to petitions for all nonimmigrant classifications filed on Form I-129, including petitions filed for E, L, O and TN nonimmigrants.
• Requires evidence of maintenance of status if the beneficiary is seeking an extension or amendment of stay.
  • This provision would apply to E–1, E–2, E–3, H–1B, H–1B1, H–2A, H–2B, H–3, L–1, O–1, O–2, P–1, P–2, P–3, Q–1, R–1, and TN nonimmigrants.
• Eliminates the itinerary requirement if services will be performed in more than one location.
  • The requirement to obtain corresponding LCAs for worksites is unchanged.
• Allows petitioners to amend validity periods when the requested validity period expires before adjudication is completed.

Increase Benefits and Flexibility

The NPRM

• Modernizes the definition of employers who are exempt from the annual statutory cap on H-1B visas to create more flexibility for nonprofit and governmental research organizations and beneficiaries who are not directly employed by a qualifying organization.
• Provides automatic extensions of F-1 cap-gap status from the current date of October 1 to April 1 of the fiscal year for which H-1B status is requested, to avoid disruptions in status, including OPT and STEM OPT employment.
• Offers start date flexibility for certain H-1B cap-subject petitions as long as the start date does not exceed six months beyond the petition filing date.

Increase Program Integrity

The NPRM

• Changes the cap registration process to select registrations based on a unique beneficiary identifier to reduce or remove the advantage of submitting multiple registrations for the same individual by different employers to increase changes of selection.
  • While a beneficiary still could have multiple, unrelated employers submit a registration on their behalf, the beneficiary would only be entered into any given lottery once, and if selected, each employer that submitted a registration for that beneficiary would be notified of selection and would be eligible to file a petition for the beneficiary.
• Bars related entities from submitting multiple registrations for the same beneficiary.
• Codifies USCIS’s ability to deny or revoke an approved H-1B petition where the underlying registration contained a false statement.
• Codifies USCIS authority to request contracts and work orders from a petitioner where appropriate, requires that the petitioner have an actual (non-speculative) position for the H-1B worker as of the requested start date on the petition, and codifies the existing requirement that a petitioner have a bona fide job offer as of the requested start date.
• Clarifies that beneficiary-owners may be eligible for H-1B status under defined conditions.
• Codifies USCIS authority to conduct site visits, including visits to third-party worksites and home worksites.
• Clarifies that if an H-1B worker is staffed to a third party, the requirements of the third party are most relevant to determining whether the position is a specialty occupation.

What’s Next?

The public may submit comments to the rule through December 22, 2023. Once DHS reviews and considers all comments, it intends to publish one or more final rules.  A final rule addressing cap registration and selection may be in place for next year’s cap registration process.

Gibney will closely monitor advancement of this rule and will provide updates as they become available.  For questions about the rule and the notice and comment period, please contact your designated Gibney representative or email….