USCIS proposes broad rule to amend H-1B regulations

On October 23, 2023, USCIS published a comprehensive proposed rule to make many desirable changes to the H-1B regulations. The Rule is titled Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers. Proposed rules are issued for public comment and are not yet legally binding. USCIS stated final rules may be issued to implement parts of the proposed rule in separate components and at different times. The proposed rule is published at 88 Federal Register 72870.Any member of the public can submit comments on the rule. Comments must be submitted on or before December 22, 2023. Highlights of the proposals include the following:

  • Revising the regulatory definition of specialty occupation
  • Clarifying that “normally” does not mean “always” with respect to the requirement that a degree is “normally” the entry level requirement for an occupation
  • Clarifying that a position may allow for a range of degrees to be considered a specialty occupation
  • Clarifying when an amended petition is needed due to a change in an employee’s work lcoation
  • Affirming that adjudicators should generally defer to prior determinations
  • Eliminating the “itinerary” requirement
  • Broadening the definition of “nonprofit research organization” and “government research organization”
  • Lengthening “cap gap” employment authorization from October 1 until April 1 of the following year
  • Taking steps to eliminate fraudulent multiple registrations in the annual H-1B lottery by giving each registrant the same opportunity for selection regardless of the number of registrations in his or her name
  • Permitting beneficiary-owners to apply for H-1B status.