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  • Matthew Kolodziej

DHS updates on H-1B: more chance to be selected, extended work authorization and more

Last week, DHS’s new H-1B proposal cleared White House review and a draft was officially published onto the federal register on Monday, October 23, 2023. This new proposal aims to achieve the following:

1. “Modernize” the H-1B program by revising the adjudication process, redefining definitions, and focusing on improving the efficiency of the program.

2. Provide new benefits and flexibility for H-1B applicants and F-1 visa holders.

3. Increase the integrity of the H-1B program to avoid fraudulent registrations, employment offers, site visits and Employer-Employee relationships.

Under the new proposal, the H-1B program touches on many topics that can be placed into two main categories:

1. New Changes to the H-1B Program

  • H-1B Lottery: cap registrations will be selected based on unique passport number instead of per registration to provide fairness and less of an incentive to do fraud.

  • F-1 Cap Gap: change to end of cap gap from October 1st to April 1st to accommodate for adjudication delays which prevent students from working beyond October 1st.

  • H-1B Start Date: employers can request a start date within a 6-month window from the petition filing date during the fiscal year, and will not be forced to indicate October 1st as the start date on the petition.

  • Eligibility for Entrepreneurs: beneficiaries with a controlling interest in the petitioning entity will be eligible for the H-1B visa as long as more than half of the individual’s time is spent on specialty occupation duties. While the initial approval and first extension is valid for 18 months, the subsequent extension will be the standard 3 years.

  • Cap Exempt Flexibility: requirements to be eligible as a cap-exempt employer is more loosely defined to meet the definition of a nonprofit research organization.

  • Defining Specialty Occupation: revise and clearly define that a specialty occupation should be more specifically tied to the job duties and requires specific degree(s) instead of a general degree.

  • Site Visits: mandatory participation from employees during USCIS site visits. Failure to participate will result in the H-1B petition being denied or revoked.

2. Existing H-1B Practices and Rules to be Made Official

  • Related organizations cannot file H-1B registrations for the same applicant.

  • All petitions must submit evidence proving maintenance of status of the applicant.

  • Requirements on when an amendment needs to be filed, LCA requirements for an amendment, etc.

  • Employers cannot provide or enter false information during the H-1B registration submission. The registration will be revoked or denied.

  • Job offers have to be bona fide and the employment must be for a real position and cannot be speculative in nature.

  • Deference for H-1B approvals for extensions if the same parties are involved and if the facts related to the petition are the same.

  • Clarify that the work done at third party locations must only be specialty occupation in nature and will fall under the responsibilities of the third party organization, not the petitioner.

It is important to note that the proposed changes are not final and do not have any immediate impact on U.S. immigration law. Under the Notice of Proposed Rulemaking (NPRM) process, the public will have until December 22, 2023 to submit their feedback before a final rule is published.

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