Proposed Changes to the H-1B Visa Program

On October 23, 2023, U.S. Citizenship and Immigration Services (USCIS) issued a proposed rule that aims to improve the H-1B program by simplifying the application process, increasing the program’s efficiency, offering more advantages and flexibilities to both petitioners and beneficiaries, and strengthening the program’s integrity measures.

Background

The H-1B visa program is pivotal for many sectors, particularly higher education. It permits U.S. employers to employ foreign professionals in specialty occupations requiring specialized knowledge and a bachelor’s degree or higher or its equivalent. The program is subject to an annual limit of 65,000 visas, with an additional allocation of 20,000 visas reserved for foreign nationals who have earned a U.S. master’s degree or higher. Certain workers are exempt from this cap, including those at higher education institutions or affiliated nonprofit entities and nonprofit or governmental research organizations.

Highlights of the Proposed Rule

Prompted by challenges with the H-1B visa lottery, USCIS has prioritized a proposed rule to address the system’s integrity. The move comes after a surge in demand for H-1B visas led to the adoption of a lottery for fair distribution. However, with the fiscal year 2024 seeing a historic 758,994 registrations and over half of the candidates being entered multiple times, there was concern over potential exploitation to skew selection chances. This proposed rule is a direct response to strengthen the registration process and prevent fraud.

Beyond addressing lottery concerns, the proposal makes critical revisions to underlying H-1B regulations. It seeks to formalize policies currently in place through guidance and tweak specific regulatory aspects.

Amending the Definition of a “Specialty Occupation.” At present, a “specialty occupation” is identified as a job that requires unique, specialized knowledge in fields like engineering, medicine, education, business specialties, the arts, etc., and it typically mandates a bachelor’s degree or higher in a specific area or its equivalent. USCIS is proposing to refine the definition of a “specialty occupation” to ensure that the required degree for such positions is directly related to the job duties. The proposal specifies that general degrees without specialized knowledge do not meet the criteria, and petitioners must prove the connection between the degree field(s) and the occupation’s duties. The rule would allow for different specific degrees to qualify for a position if each degree directly relates to the occupation’s responsibilities. For example, a bachelor’s degree in either education or chemistry could be suitable for a chemistry teacher’s position if both are relevant to the job. The changes emphasize that the mere possibility of qualifying for a position with an unrelated degree is insufficient, and specific degrees must impart highly specialized knowledge pertinent to the role.

Amending the Criteria for Specialty Occupation Positions. USCIS is proposing updates to the criteria defining a “specialty occupation” under the Immigration and Nationality Act. This proposal includes a clarification of the term “normally,” which, in the context of a specialty occupation, indicates that a bachelor’s degree is typically, but not always, necessary for the profession. USCIS is aiming to standardize this term to reflect a type, standard, or regular pattern, reinforcing that the term “normally” does not equate to “always.”

Extending F-1 Cap-Gap Protection. USCIS is proposing to revise the Cap-Gap provisions, which currently extend employment authorization for F-1 students awaiting H-1B visa approval until October 1 of the fiscal year for which H–1B visa classification has been requested. The Cap-Gap refers to the period between the end of an F-1 student’s Optional Practical Training (OPT) and the start of their H-1B status, which can lead to a gap in lawful status or employment authorization. The new proposal seeks to extend this period until April 1 of the fiscal year for which the H-1B visa is filed, or until the visa is approved, to better address processing delays and reduce the risk of employment authorization interruption. To be eligible, the H-1B petition must be legitimate and filed on time. This change is intended to support the U.S. in attracting and maintaining skilled international workers by providing a more reliable transition from student to professional status.

Cap-Exempt Organizations. USCIS is redefining which employers are exempt from the H-1B visa cap. The proposed changes involve revising the definition of “nonprofit research organization” and “governmental research organization” from being “primarily engaged” in research to conducting research as a “fundamental activity.” This proposed change would enable organizations that might not focus primarily on research, but still fundamentally engage in such activities, to qualify for the exemption. Additionally, USCIS aims to accommodate beneficiaries not directly employed by a qualifying organization but who still perform essential, mission-critical work.

Deference. USCIS is proposing to codify a policy of deference to prior adjudications of Form I-129 petitions, as delineated in the USCIS Policy Manual, mandating that officers give precedence to earlier decisions when the same parties and material facts recur. This proposal, however, includes stipulations that such deference is not required if there were material errors in the initial approval, if substantial changes in circumstances or eligibility have occurred, or if new and pertinent information emerges that could negatively influence the eligibility assessment.

Next Steps

While this summary captures key elements of the proposed changes, our members should be aware that the rule contains other important provisions that warrant careful review. These additional provisions could also significantly impact the H-1B visa program and its beneficiaries, and it is crucial for all interested parties to examine the proposed rule in its entirety to understand its full implications.

USCIS is accepting public comment on its proposal through December 22, 2023. CUPA-HR is evaluating the proposed revisions and will be working with other higher education associations to submit comprehensive comments for the agency’s consideration. As USCIS moves towards finalizing the proposals within this rulemaking, potentially through one or more final rules depending on the availability of agency resources, CUPA-HR will keep its members informed of all significant updates and outcomes.