A Summary of USCIS’s Proposed Changes to the H1B Program

In October 2023, U.S. Citizenship & Immigration Services provided notice that it plans to amend the current H-1B regulations. The notice of proposed rulemaking (NPRM) is publicly available and USCIS is accepting public comments through late December 2023.

See below for a summary of some of the key proposals outlined in the NPRM:

• Updating the definition of Specialty Occupation: A specialty occupation is currently defined in the regulations as an occupation requiring “theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor” where a Bachelor’s degree or higher (or equivalent) in the specialty is the minimum requirement for entry into the occupation. Under the proposed changes, USCIS plans to add language to codify that there must be a direct link between the job duties and the required degree; that more than one degree field may satisfy the requirement; and that a general degree, such as a Business Administration degree would be insufficient to meet the standard without further specialization.
• Defining “normally” as it applies to Specialty Occupation criteria: The current regulations state that one of the ways to prove a job is a specialty occupation is to show a bachelor’s degree is “normally” required. In its proposal, USCIS seeks to define the word “normally” as “conforming to a type, standard, or regular pattern” and as “characterized by that which is considered usually, typical, common or routine.” The other important change is that USCIS seeks to clarify that “normally” required does not mean that a degree is always required for the position to qualify as a specialty occupation.
• Amended petitions: The rule would codify and clarify that changes in the job location that require a new Labor Condition Application (LCA) are a material change, meaning the employer must filed a new or amended petition before the H1B employee can start working at the new location. The proposed regulations would also clarify when an amendment is not needed, such as when the new job location is within the same area of intended employment listed on the current LCA. They would also provide the specific time frames for short-term placements that do not require new or amended petitions and clarify that going to a different location for employee development or performing work as part of a peripatetic job would not require a new or amended petition.
• Deference policy: The proposed regulations also seek to codify USCIS’s current deference policy. Under this policy, officers are instructed to defer to prior determinations in cases with the same underlying facts and parties where there has been no material change in the circumstances or eligibility for the petition and where there is no new material information that would adversely impact eligibility for the petitioner, beneficiary and/or applicant. The proposed regulation would apply to all nonimmigrant petitions filed on Form I-129 where the petition involves the same facts and the same parties.
• Maintenance of status: USCIS proposes adding a new provision to codify the current information in the Form I-129 instructions, which require that any applicant seeking an extension or amendment would need to submit evidence that they have maintained their status prior to filing the petition. Evidence of maintenance of status would include documents such as W-2s, recent paystubs, tax returns, contracts, work order and/or quarterly wage reports.
• Itinerary Requirement: USCIS is proposing to eliminate the itinerary requirement all H programs on the basis that the information is generally already provided in the LCAs for H-1Bs and the temporary labor certifications (TLCs) for H-2 petitions.
• H-1B Cap Exemptions: The proposed changes would revise the definitions of “nonprofit research organization and “governmental research organization” and would also add language to make it easier for beneficiaries who are not directly employed by qualifying entities to demonstrate eligibility for H-1B cap exemption as long as they spend at least half of their time working for the qualifying organization.
• Cap-gap extensions: Another proposal would allow for an automatic extension of F-1 status, post-completion OPT or STEM OPT until April 1 of the fiscal year in which the H-1B employment starts. Currently, the cap-gap extension ends on October 1 of the fiscal year in which H-1B employment starts. This change would provide a longer automatic extension for F-1 students while they wait for their H-1B petitions to be adjudicated.

These are only a few of the key proposals outlined by USCIS in the notice of proposed rulemaking. Public comments are being accepted through December 22, 2023 and then the government will move to draft a final rule, which will include the effective date for any regulatory changes such as the ones described above.