DHS Announces First Phase of Final H-1B Modernization Rule

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.