USCIS Takes First Step Toward Modernization of the H-1B Program

The U.S. Citizenship and Immigration Services (USCIS) has announced a final rule to enhance and modernize the H-1B program, which provides work authorization to foreign nationals who are offered U.S. positions that, in part, require a bachelor's degree (or equivalent) to perform the job.

The final rule will be published on Feb. 2, 2024, and it will take effect 30 days later. The final rule, which is related to H-1B cap registration, introduces several changes to the H-1B lottery process. These changes will take effect before the Fiscal Year 2025 registration system opens for the H-1B lottery on March 6, 2024.

This final rule is intended to protect against misuse and fraud by selecting H-1B lottery registrations using a passport number or travel document number that is unique to each individual. This will ensure that every H-1B lottery registrant has the same odds of selection even when multiple registrations have been submitted on a person's behalf. The rule also codifies USCIS' ability to deny or revoke an H-1B petition if statements in the petition, H-1B registration, Labor Condition Application (LCA) or temporary labor certification are found to be inaccurate, misrepresented or otherwise invalid.

More to Come

The final rule is the first step in USCIS' plan to finalize and phase in elements of the proposed rule published on Oct. 23, 2023. Future phases of the H-1B modernization rule are expected to address several key areas, as outlined below:

• Definition of Specialty Occupation: USCIS is expected to substantially revise the definition of an H-1B specialty occupation to allow greater flexibility. Specifically, it is expected that the rule, once published, will allow a position to qualify as a "specialty occupation" if the position normally, but does not always, require a bachelor's degree or equivalent. The rule is also expected to confirm that employers may accept degrees in a broad range of fields if the fields are related to the duties of the offered H-1B position. Additional rules surrounding the relevant degree requirements when an H-1B worker is placed at a third-party site are also expected.
• Deference Policy: USCIS has traditionally given deference to prior H-1B approvals and is expected to codify this policy and provide employers with greater predictability and assurances when extending an employee's H-1B status, assuming there have been no material changes in the employee's circumstances.
• Bona Fide H-1B Employment: USCIS often requests contracts and other evidence to prove that a bona fide job offer exists for an H-1B beneficiary. This policy is also expected to be codified, and USCIS is also expected to remove the itinerary requirement for H-1B petitions and require that H-1B petitioners and employers have a legal presence in the United States.
• F-1 Cap-Gap Protection: USCIS is expected to provide longer cap-gap protection for F-1 students who are beneficiaries of timely filed H-1B petitions that request a change of status. It is expected that USCIS may allow an additional six months of F-1 status and accompanying employment authorization to help certain qualifying F-1 students avoid gaps in their nonimmigrant status and work authorization while they wait for a change to H-1B status.
• H-1B Amendments: USCIS is expected to codify its requirement that an employer file an H-1B amendment if there is a material change in the H-1B worker's location of employment. Further, it is expected that the rule will require that an amendment be filed before the material change takes place. Some worksite location changes will not require an H-1B amendment, such as changes that take place within the same area of intended employment as the worksite listed in the H-1B petition's LCA.

Future elements of the H-1B modernization rule are expected to address topics such as business owner H-1B eligibility, the Fraud Detection and National Security (FDNS) unit's site visit program and the impact of lengthy petition adjudications.

For additional information, please contact the authors or a member of Holland & Knight's Immigration, Nationality and Consular Team.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.