Proposed Rule2023-23381
Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 23, 2023
Issuing agencies
Homeland Security Department
Abstract
The U.S. Department of Homeland Security (DHS) proposes to amend its regulations governing H-1B specialty occupation workers to modernize and improve the efficiency of the H-1B program, add benefits and flexibilities, and improve integrity measures. Some of the proposed provisions would narrowly impact other nonimmigrant classifications, including: H-2, H-3, F-1, L-1, O, P, Q-1, R-1, E-3, and TN. DHS intends to finalize the proposals contained in this rulemaking through one or more final rules, depending on agency resources.
Full Text
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[Federal Register Volume 88, Number 203 (Monday, October 23, 2023)]
[Proposed Rules]
[Pages 72870-72963]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-23381]
[[Page 72869]]
Vol. 88
Monday,
No. 203
October 23, 2023
Part III
Department of Homeland Security
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8 CFR Part 214
Modernizing H-1B Requirements, Providing Flexibility in the F-1
Program, and Program Improvements Affecting Other Nonimmigrant Workers;
Proposed Rule
Federal Register / Vol. 88 , No. 203 / Monday, October 23, 2023 /
Proposed Rules
[[Page 72870]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 214
[CIS No. 2745-23; DHS Docket No. USCIS-2023-0005]
RIN 1615-AC70
Modernizing H-1B Requirements, Providing Flexibility in the F-1
Program, and Program Improvements Affecting Other Nonimmigrant Workers
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The U.S. Department of Homeland Security (DHS) proposes to
amend its regulations governing H-1B specialty occupation workers to
modernize and improve the efficiency of the H-1B program, add benefits
and flexibilities, and improve integrity measures. Some of the proposed
provisions would narrowly impact other nonimmigrant classifications,
including: H-2, H-3, F-1, L-1, O, P, Q-1, R-1, E-3, and TN. DHS intends
to finalize the proposals contained in this rulemaking through one or
more final rules, depending on agency resources.
DATES: Written comments must be submitted on or before December 22,
2023.
ADDRESSES: You may submit comments on the entirety of this proposed
rulemaking package, identified by DHS Docket No. USCIS-2023-0005
through the Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the website instructions for submitting comments. The electronic
Federal Docket Management System will accept comments before midnight
Eastern time on December 22, 2023.
Comments submitted in a manner other than the one listed above,
including emails or letters sent to DHS or USCIS officials, will not be
considered comments on the proposed rule and may not receive a response
from DHS. Please note that DHS and USCIS cannot accept any comments
that are hand-delivered or couriered. In addition, DHS and USCIS cannot
accept comments contained on any form of digital media storage devices,
such as CDs/DVDs and USB drives. USCIS is also not accepting mailed
comments at this time. If you cannot submit your comment by using
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, please contact Samantha Deshommes, Chief,
Regulatory Coordination Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, U.S. Department of Homeland
Security, by telephone at (240) 721-3000 for alternate instructions.
FOR FURTHER INFORMATION CONTACT: Charles L. Nimick, Chief, Business and
Foreign Workers Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, U.S. Department of Homeland
Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone
(240) 721-3000.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of the Major Provisions of the Regulatory Action
1. Modernization and Efficiencies
2. Benefits and Flexibilities
3. Program Integrity
C. Summary of Costs and Benefits
D. Request for Preliminary Public Input
E. Future Rulemaking Actions
III. Background and Purpose
A. Legal Authority
B. Background
1. The H-1B Program
2. The F-1 Program
IV. Discussion of the Proposed Rule
A. Modernization and Efficiencies
1. Amending the Definition of a ``Specialty Occupation''
2. Amending the Criteria for Specialty Occupation Positions
3. Amended Petitions
4. Deference
5. Evidence of Maintenance of Status
6. Eliminating the Itinerary Requirement for H Programs
7. Validity Expires Before Adjudication
B. Benefits and Flexibilities
1. H-1B Cap Exemptions
2. Automatic Extension of Authorized Employment Under 8 CFR
214.2(f)(5)(vi) (Cap-Gap)
3. Start Date Flexibility for Certain H-1B Cap-Subject Petitions
C. Program Integrity
1. The H-1B Registration System
2. Beneficiary Centric Selection
3. Bar on Multiple Registrations Submitted by Related Entities
4. Registrations With False Information or That Are Otherwise
Invalid
5. Alternatives Considered
6. Provisions To Ensure Bona Fide Job Offer for a Specialty
Occupation Position
a. Contracts
b. Non-Speculative Employment
c. LCA Corresponds With the Petition
d. Revising the Definition of U.S. Employer
e. Employer-Employee Relationship
f. Bona Fide Job Offer
g. Legal Presence and Amenable to Service of Process
7. Beneficiary-Owners
8. Site Visits
9. Third-Party Placement (Codifying Defensor)
D. Request for Preliminary Public Input Related to Future
Actions/Proposals
1. Use or Lose
2. Beneficiary Notification
E. Potential Publication of One or More Final Rules
F. Severability
V. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review) and
Executive Order 13563 (Improving Regulation and Regulatory Review)
1. Summary
2. Background
3. Costs, Transfers, and Benefits of the Proposed Rule
a. Amended Petitions
b. Deference to Prior USCIS Determinations of Eligibility in
Requests for Extensions of Petition Validity
c. Evidence of Maintenance of Status
d. Eliminating the Itinerary Requirement for H Programs
e. Validity Period Expires Before Adjudication
f. H-1B Cap Exemptions
g. Automatic Extension of Authorized Employment ``Cap-Gap''
h. Start Date Flexibility for Certain H-1B Cap-Subject Petitions
i. The H-1B Registration System
j. Beneficiary Centric Selection
k. Bar on Multiple Registrations Submitted by Related Entities
l. Registrations With False Information or That Are Otherwise
Invalid
m. Provisions To Ensure Bona Fide Job Offer for a Specialty
Occupation Position
(1) Contracts
(2) Non-Speculative Employment
(3) LCA Corresponds With the Petition
(4) Revising the Definition of U.S. Employer
(5) Employer-Employee Relationship
n. Beneficiary-Owners
o. Site Visits
p. Third-Party Placement (Codifying Defensor)
q. Additional Time Burden for Form I-129 H-1B
r. Additional Time Burden for H Classification Supplement to
Form I-129
4. Alternatives Considered
5. Total Quantified Net Costs of the Proposed Regulatory Changes
B. Regulatory Flexibility Act (RFA)
1. Initial Regulatory Flexibility Analysis
a. A Description of the Reasons Why the Action by the Agency Is
Being Considered
b. A Statement of the Objectives of, and Legal Basis for, the
Proposed Rule
c. A Description and, Where Feasible, an Estimate of the Number
of Small Entities to Which the Proposed Changes Would Apply
d. A Description of the Projected Reporting, Recordkeeping, and
Other Compliance Requirements of the Proposed Rule, Including an
Estimate of the Classes of Small Entities That Will Be Subject to
the Requirement and the Types of Professional Skills
e. An Identification of All Relevant Federal Rules, to the
Extent Practical, That May Duplicate, Overlap, or Conflict With the
Proposed Rule
f. A Description of Any Significant Alternatives to the Proposed
Rule That Accomplish the Stated Objectives of
[[Page 72871]]
Applicable Statutes and That Minimize any Significant Economic
Impact of the Proposed Rule on Small Entities
C. Unfunded Mandates Reform Act of 1995 (UMRA)
D. Congressional Review Act
E. Executive Order 13132 (Federalism)
F. Executive Order 12988: Civil Justice Reform
G. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
H. National Environmental Policy Act (NEPA)
I. Paperwork Reduction Act
Table of Abbreviations
AAO--Administrative Appeals Office
AC21--American Competitiveness in the Twenty-first Century Act
ACWIA--American Competitiveness and Workforce Improvement Act of
1998
BLS--Bureau of Labor Statistics
CEQ--Council on Environmental Quality
CFR--Code of Federal Regulations
CMSA--Consolidated Metropolitan Statistical Area
COS--Change of Status
CPI-U--Consumer Price Index for All Urban Consumers
D/S--Duration of status
DHS--U.S. Department of Homeland Security
DOL--U.S. Department of Labor
DOS--U.S. Department of State
FDNS--Fraud Detection and National Security
FR--Federal Register
FY--Fiscal Year
HR--Human Resources
HSA--Homeland Security Act of 2002
ICE--Immigration and Customs Enforcement
IMMACT 90--Immigration Act of 1990
INA--Immigration and Nationality Act
INS--legacy Immigration and Naturalization Service
IRFA--Initial Regulatory Flexibility Analysis
IRS--Internal Revenue Service
LCA--Labor Condition Application
MSA--Metropolitan Statistical Area
NAICS--North American Industry Classification System
NEPA--National Environmental Policy Act
NOID--Notice of Intent to Deny
NPRM--Notice of proposed rulemaking
OIRA--Office of Information and Regulatory Affairs
OMB--Office of Management and Budget
OP&S--Office of Policy and Strategy
OPT--Optional Practical Training
PM--Policy Memorandum
PMSA--Primary Metropolitan Statistical Area
PRA--Paperwork Reduction Act PRD--Policy Research Division
Pub. L.--Public Law
RFA--Regulatory Flexibility Act of 1980
RFE--Request for Evidence RIA--Regulatory Impact Analysis
RIN--Regulation Identifier Number
SBA--Small Business Administration
SEVP--Student and Exchange Visitor Program
SOC--Standard Occupational Classification
Stat.--U.S. Statutes at Large
TLC--Temporary Labor Certification
UMRA--Unfunded Mandates Reform Act
U.S.C.--United States Code
USCIS--U.S. Citizenship and Immigration Services
I. Public Participation
DHS invites all interested parties to participate in this
rulemaking by submitting written data, views, comments, and arguments
on all aspects of this proposed rule. DHS also invites comments that
relate to the economic, environmental, or federalism effects that might
result from this proposed rule. Comments must be submitted in English,
or an English translation must be provided. Comments that will provide
the most assistance to USCIS in implementing these changes will
reference a specific portion of the proposed rule, explain the reason
for any recommended change, and include data, information, or authority
that support such recommended change. Comments submitted in a manner
other than the one listed above, including emails or letters sent to
DHS or USCIS officials, will not be considered comments on the proposed
rule and may not receive a response from DHS.
Instructions: If you submit a comment, you must include the agency
name (U.S. Citizenship and Immigration Services) and the DHS Docket No.
USCIS-2023-0005 for this rulemaking. Please note all submissions will
be posted, without change, to the Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, and will include any personal information you
provide. Therefore, submitting this information makes it public. You
may wish to consider limiting the amount of personal information that
you provide in any voluntary public comment submission you make to DHS.
DHS may withhold information provided in comments from public viewing
that it determines may impact the privacy of an individual or is
offensive. For additional information, please read the Privacy and
Security Notice available at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Docket: For access to the docket and to read background documents
or comments received, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, referencing
DHS Docket No. USCIS-2023-0005. You may also sign up for email alerts
on the online docket to be notified when comments are posted or a final
rule is published.
II. Executive Summary
A. Purpose of the Regulatory Action
The purpose of this rulemaking is to modernize and improve the
regulations relating to the H-1B program by: (1) streamlining the
requirements of the H-1B program and improving program efficiency; (2)
providing greater benefits and flexibilities for petitioners and
beneficiaries; and (3) improving integrity measures. Some of the
proposed provisions would narrowly impact other nonimmigrant
classifications.
B. Summary of the Major Provisions of the Regulatory Action
1. Modernization and Efficiencies
DHS proposes to streamline requirements for the H-1B program by:
(1) revising the regulatory definition and criteria for a ``specialty
occupation''; (2) clarifying that ``normally'' does not mean ``always''
within the criteria for a specialty occupation; and (3) clarifying that
a position may allow a range of degrees, although there must be a
direct relationship between the required degree field(s) and the duties
of the position. As 21st century employers strive to generate better
hiring outcomes, improving the match between required skills and job
duties, employers have increasingly become more aware of a skills-first
culture, led by the Federal Government's commitment to attract and hire
individuals well-suited to available jobs.\1\ The flexibility inherent
in H-1B adjudications to identify job duties and particular positions
where a bachelor's or higher degree in a specific specialty, or its
equivalent, is normally required, allows employers to explore where
skills-based hiring is sensible.
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\1\ See, e.g., U.S. Office of Personnel Management, Memorandum
for Heads of Executive Departments and Agencies: ``Guidance
Release--E.O. 13932; Modernizing and Reforming the Assessment and
Hiring of Federal Job Candidates'' (May 19, 2022), <a href="https://chcoc.gov/content/guidance-release-eo-13932-modernizing-and-reforming-assessment-and-hiring-federal-job">https://chcoc.gov/content/guidance-release-eo-13932-modernizing-and-reforming-assessment-and-hiring-federal-job</a>.
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DHS also proposes to clarify when an amended or new petition must
be filed due to a change in an H-1B worker's place of employment to be
consistent with current policy guidance.
Additionally, DHS proposes to codify and clarify its deference
policy to state that, if there has been no material change in the
underlying facts, adjudicators generally should defer to a prior
determination involving the same parties and underlying facts. DHS also
proposes to update the regulations to expressly require that evidence
of maintenance of status must be included with the petition if a
beneficiary is seeking an extension or amendment of stay. This policy
would impact all employment-based nonimmigrant classifications that use
Form I-129,
[[Page 72872]]
Petition for Nonimmigrant Worker. DHS further proposes to eliminate the
itinerary requirement, which would apply to all H classifications, and
allow petitioners to amend requested validity periods where the
validity expires before adjudication.
2. Benefits and Flexibilities
DHS proposes to modernize the definition of employers who are
exempt from the annual statutory limit on H-1B visas to create more
flexibility for nonprofit and governmental research organizations and
beneficiaries who are not directly employed by a qualifying
organization. Specifically, DHS proposes to change the definition of
``nonprofit research organization'' and ``governmental research
organization'' by replacing ``primarily engaged'' and ``primary
mission'' with ``fundamental activity'' to permit a nonprofit entity or
governmental research organization that conducts research as a
fundamental activity, but is not primarily engaged in research or where
research is not a primary mission, to meet the definition of a
nonprofit research entity. Additionally, DHS proposes to revise the
requirements for beneficiaries to qualify for H-1B cap exemption when
they are not directly employed by a qualifying organization, but still
provide essential work, even if their duties do not necessarily
directly further the organization's essential purpose.
DHS also proposes to provide flexibilities, such as automatically
extending the duration of F-1 status, and any employment authorization
granted under 8 CFR 274a.12(c)(3)(i)(B) or (C), until April 1 of the
relevant fiscal year, rather than October 1 of the same fiscal year, to
avoid disruptions in lawful status and employment authorization for F-1
students changing their status to H-1B. Additionally, DHS is proposing
to clarify the requirements regarding the requested employment start
date on H-1B cap-subject petitions to permit filing with requested
start dates that are after October 1 of the relevant fiscal year,
consistent with current USCIS policy.
3. Program Integrity
DHS proposes to address H-1B cap registration abuse by changing the
way USCIS selects registrations. Instead of selecting by registration,
USCIS would select registrations by unique beneficiary, thereby
reducing the potential for gaming the process to increase chances for
selection and helping ensure that each beneficiary would have the same
chance of being selected, regardless of how many registrations are
submitted on their behalf. DHS also proposes to clarify that related
entities are prohibited from submitting multiple registrations for the
same beneficiary, similar to the prohibition on related entities filing
multiple cap-subject petitions for the same beneficiary for the same
fiscal year's numerical allocations. Additionally, DHS proposes to
codify USCIS's ability to deny H-1B petitions or revoke an approved H-
1B petition where the underlying registration contained a false
attestation or was otherwise invalid.
DHS further proposes to improve the integrity of the H-1B program
by: (1) codifying its authority to request contracts; (2) requiring
that the petitioner establish that it has an actual, non-speculative
position in a specialty occupation available for the beneficiary as of
the requested start date; (3) ensuring that the labor condition
application (LCA) properly supports and corresponds with the petition;
(4) revising the definition of ``United States employer'' by codifying
the existing requirement that the petitioner has a bona fide job offer
for the beneficiary to work within the United States as of the
requested start date, consistent with current DHS policy; and (5)
adding a requirement that the petitioner have a legal presence and be
amenable to service of process in the United States.
DHS additionally proposes to clarify that beneficiary-owners may be
eligible for H-1B status, while setting reasonable conditions for when
the beneficiary owns a controlling interest in the petitioning entity.
DHS also proposes to codify USCIS's authority to conduct site
visits and clarify that refusal to comply with site visits may result
in denial or revocation of the petition. Additionally, DHS proposes to
clarify that if an H-1B worker will be staffed to a third party,
meaning they will be contracted to fill a position in the third party's
organization, it is the requirements of that third party, and not the
petitioner, that are most relevant when determining whether the
position is a specialty occupation. Through these provisions, DHS aims
to prevent fraud and abuse and maintain H-1B program integrity.
C. Summary of Costs and Benefits
As discussed in the preamble, the purpose of this rulemaking is to
modernize and improve the regulations relating to the H-1B program by:
(1) streamlining H-1B program requirements and improving program
efficiency; (2) providing greater benefits and flexibilities for
petitioners and beneficiaries; and (3) improving integrity measures.
For the 10-year period of analysis of the proposed rule, DHS
estimates the annualized net costs of this rulemaking would be
$6,339,779 annualized at 3 percent and 7 percent. Table 12 provides a
more detailed summary of the proposed rule provisions and their
impacts.
D. Request for Preliminary Public Input
Finally, DHS is requesting preliminary public input on ideas that
would curb or eliminate the possibility that petitioners may have
speculative job opportunities as of the requested start date and delay
admission of H-1B beneficiaries until the petitioner has secured work
for the H-1B beneficiary, including two potential approaches DHS is
considering for future action. DHS is also seeking preliminary public
input on ways to provide H-1B and other Form I-129 beneficiaries with
notice of USCIS actions taken on petitions filed on their behalf.
E. Future Rulemaking Actions
After carefully considering any public comments received on the
proposals in this NPRM, DHS may move to finalize the proposed
provisions through one or more final rules, and may possibly do so in
time for the fiscal year (FY) 2025 cap season, depending on agency
resources.
III. Background and Purpose
A. Legal Authority
The Secretary of Homeland Security's authority for these proposed
regulatory amendments is found in various sections of the Immigration
and Nationality Act (INA or the Act), 8 U.S.C. 1101 et seq., and the
Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat.
2135, 6 U.S.C. 101 et seq. General authority for issuing this proposed
rule is found in section 103(a) of the INA, 8 U.S.C. 1103(a), which
authorizes the Secretary to administer and enforce the immigration and
nationality laws and establish such regulations as the Secretary deems
necessary for carrying out such authority, as well as section 112 of
the HSA, 6 U.S.C. 112, which vests all of the functions of DHS in the
Secretary and authorizes the Secretary to issue regulations.\2\ Further
authority for these regulatory amendments is found in:
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\2\ Although several provisions of the INA discussed in this
NPRM refer exclusively to the ``Attorney General,'' such provisions
are now to be read as referring to the Secretary of Homeland
Security by operation of the HSA. See 6 U.S.C. 202(3), 251, 271(b),
542 note, 557; 8 U.S.C. 1103(a)(1), (g), 1551 note; Nielsen v.
Preap, 139 S. Ct. 954, 959 n.2 (2019).
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<bullet> Section 101(a)(15) of the INA, 8 U.S.C. 1101(a)(15), which
establishes
[[Page 72873]]
classifications for noncitizens who are coming temporarily to the
United States as nonimmigrants, including the H-1B classification, see
INA section 101(a)(15)(H)(i)(b), 8 U.S.C. 1101(a)(15)(H)(i)(b);
<bullet> Section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), which
authorizes the Secretary to prescribe, by regulation, the time and
conditions of the admission of nonimmigrants;
<bullet> Section 214(c) of the INA, 8 U.S.C. 1184(c), which, inter
alia, authorizes the Secretary to prescribe how an importing employer
may petition for nonimmigrant workers, including certain nonimmigrants
described at sections 101(a)(a)(15)(H), (L), (O), and (P), 8 U.S.C.
1101(a)(15)(H), (L), (O), and (P); the information that an importing
employer must provide in the petition; and certain fees that are
required for certain nonimmigrant petitions;
<bullet> Section 214(e) of the INA, 8 U.S.C. 1184(e), which
provides for the admission of citizens of Canada or Mexico as TN
nonimmigrants;
<bullet> Section 214(g) of the INA, 8 U.S.C. 1184(g), which, inter
alia, prescribes the H-1B numerical limitations, various exceptions to
those limitations, and the period of authorized admission for H-1B
nonimmigrants;
<bullet> Section 214(i) of the INA, 8 U.S.C. 1184(i), which sets
forth the definition and requirements of a ``specialty occupation'';
<bullet> Section 235(d)(3) of the INA, 8 U.S.C. 1225(d)(3) (``any
immigration officer shall have the power to administer oaths and to
take and consider evidence of or from any person touching the privilege
of any alien or person he believes or suspects to be an alien to enter,
reenter, transit through, or reside in the United States or concerning
any matter which is material and relevant to the enforcement of this
chapter and the administration of the Service.'');
<bullet> Section 248 of the INA, 8 U.S.C. 1258, which authorizes a
noncitizen to change from any nonimmigrant classification to any other
nonimmigrant classification (subject to certain exceptions) if the
noncitizen was lawfully admitted to the United States as a nonimmigrant
and is continuing to maintain that status, and is not otherwise subject
to the 3- or 10-year bar applicable to certain noncitizens who were
unlawfully present in the United States;
<bullet> Section 274A of the INA, 8 U.S.C. 1324a, which recognizes
the Secretary's authority to extend employment authorization to
noncitizens in the United States;
<bullet> Section 287(b) of the INA, 8 U.S.C. 1357(b), which
authorizes the taking and consideration of evidence concerning any
matter that is material or relevant to the enforcement of the INA;
<bullet> Section 402 of the Homeland Security Act of 2002 (HSA),
Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 202, which charges the
Secretary with ``[e]stablishing and administering rules . . . governing
the granting of visas or other forms of permission . . . to enter the
United States'' and ``[e]stablishing national immigration enforcement
policies and priorities,'' id.; see also HSA sec. 428, 6 U.S.C. 236;
and
<bullet> Section 451(a)(3) and (b) of the HSA, 6 U.S.C. 271(a)(3)
and (b), transferring to USCIS the authority to adjudicate petitions
for nonimmigrant status, establish policies for performing that
function, and set national immigration services policies and
priorities.
B. Background
1. The H-1B Program
The H-1B nonimmigrant visa program allows U.S. employers to
temporarily employ foreign workers in specialty occupations, defined by
statute as occupations that require the theoretical and practical
application of a body of highly specialized knowledge and a bachelor's
or higher degree in the specific specialty, or its equivalent. See INA
sections 101(a)(15)(H)(i)(b) and 214(i), 8 U.S.C 1101(a)(15)(H)(i)(b)
and 1184(i).
The Immigration Act of 1990 (Pub. L. 101-649) (IMMACT 90)
significantly reformed the H-1B program. To protect U.S. workers,
IMMACT 90 required a certified LCA by the Secretary of Labor as a
prerequisite for classification as an H-1B nonimmigrant. The LCA
requirement, and the associated obligations the employer must attest to
and comply with, including the prevailing or actual wage requirement,
were intended to safeguard the wages and working conditions of U.S.
workers.\3\ Through IMMACT 90, Congress set the current annual cap for
the H-1B visa category at 65,000,\4\ which limited the number of
beneficiaries who may be issued an initial H-1B visa or otherwise
provided initial H-1B status each fiscal year.\5\ Prior to IMMACT 90,
no limit existed on the number of initial H-1B visas that could be
granted each fiscal year. Congressional deliberations ahead of the
enactment of the American Competitiveness and Workforce Improvement Act
of 1998 (ACWIA) describe the H-1B program's purpose both as filling
shortages and creating opportunities for innovation and expansion.\6\
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\3\ See U.S. Gov't Accountability Off., GAO/PEMD-92-17,
``Immigration and the Labor Market: Nonimmigrant Alien Workers in
the United States,'' at 18 (1992).
\4\ Up to 6,800 visas are set aside from the 65,000 each fiscal
year for the H-1B1 visa program under terms of the legislation
implementing the U.S.-Chile and U.S.-Singapore free trade
agreements. See INA sections 101(a)(15)(H)(i)(b1), 214(g)(8), 8
U.S.C. 1101(a)(15)(H)(i)(b1), 1184(g)(8).
\5\ The 65,000 annual H-1B numerical limitation was increased
for FYs 1999-2003. See INA section 214(g)(1)(A), 8 U.S.C.
1184(g)(1)(A), as amended by section 411 of the ACWIA, Public Law
105-277, div. C, tit. IV, 112 Stat. 2681, and the American
Competitiveness in the Twenty-first Century Act of 2000 (AC21),
Public Law 106-313, 114 Stat. 1251, as amended by the 21st Century
Department of Justice Appropriations Authorization Act, Public Law
107-273, 116 Stat. 1758 (2002). Subsequent to IMMACT 90, Congress
also created several exemptions from the 65,000 numerical
limitation. See INA section 214(g)(5), 8 U.S.C. 1184(g)(5).
\6\ See 144 Cong. Rec. at S12749 (statement of Sen. Abraham)
(``[T]his issue [of increasing H-1B visas] is not only about
shortages, it is about opportunities for innovation and
expansion.'').
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Congress also set up several exemptions to the annual H-1B cap. For
example, workers who will be employed at an institution of higher
education (as defined in section 101(a) of the Higher Education Act of
1965, as amended) or a related or affiliated nonprofit entity, and
workers who will be employed at a nonprofit or governmental research
organization, are exempt from the cap. These exemptions are not
numerically capped. See INA section 214(g)(5)(A)-(B), 8 U.S.C.
1184(g)(5)(A)-(B). Congress further provided an exemption from the
numerical limits in INA section 214(g)(1)(A), 8 U.S.C. 1184(g)(1)(A),
for 20,000 new H-1B visas, or grants of initial H-1B status, each
fiscal year for foreign nationals who have earned a U.S. master's or
higher degree (``advanced degree exemption'').\7\ Cap exemptions are
discussed in more detail below.
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\7\ See INA section 214(g)(5)(C), 8 U.S.C. 1184(g)(5)(C). This
rule also may refer to the 20,000 exemptions under section
214(g)(5)(C) from the H-1B regular cap as the ``advanced degree
exemption allocation'' or ``advanced degree exemption numerical
limitation.''
---------------------------------------------------------------------------
To manage the annual cap, USCIS used a random selection process in
years of high demand to determine which petitions were selected toward
the projected number of petitions needed to reach the annual H-1B
numerical allocations.\8\ In order to better manage the selection
process, DHS created a registration requirement for H-1B cap-subject
petitions, which was first implemented in 2020 for the FY 2021
[[Page 72874]]
cap season.\9\ Under the registration requirement, prospective
petitioners seeking to file H-1B cap-subject petitions (including
petitions filed on behalf of beneficiaries eligible for the advanced
degree exemption) must first electronically register and pay the
associated H-1B registration fee for each prospective beneficiary. The
random selection process is then conducted, selecting from the properly
submitted registrations the number of registrations projected as needed
to reach the numerical allocations.\10\ Only those prospective
petitioners with selected registrations are eligible to file H-1B cap-
subject petitions for the beneficiary(ies) named in their selected
registration(s). The electronic registration process has streamlined
the H-1B cap selection process by reducing paperwork and simplifying
data exchange, and has provided overall cost savings to employers
seeking to file H-1B cap-subject petitions and to USCIS. Prior to the
registration requirement, petitioners were required to prepare and file
complete H-1B petitions in order to be considered for the random
selection process.
---------------------------------------------------------------------------
\8\ See ``Registration Requirement for Petitioners Seeking To
File H-1B Petitions on Behalf of Cap-Subject Aliens,'' 84 FR 888
(Jan. 31, 2019).
\9\ Id.
\10\ See 8 CFR 214.2(h)(8)(iii).
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2. The F-1 Program
Section 101(a)(15)(F)(i) of the INA, 8 U.S.C. 1101(a)(15)(F)(i),
permits bona fide students to be temporarily admitted to the United
States for the purpose of pursuing a full course of study at an
established college, university, seminary, conservatory, academic high
school, elementary school, or other academic institution or accredited
language training program. Principal applicants are categorized as F-1
nonimmigrants and their spouses and minor children may accompany or
follow to join them as F-2 dependents.\11\
---------------------------------------------------------------------------
\11\ See INA section 101(a)(15)(F)(i)-(ii), 8 U.S.C.
1101(a)(15)(F)(i)-(ii); 8 CFR 214.2(f)(3).
---------------------------------------------------------------------------
In 1992, legacy Immigration and Naturalization Services (INS)
amended its longstanding regulations relating to an employment program
for students called Optional Practical Training (OPT) such that
students in F-1 nonimmigrant status who have been enrolled on a full-
time basis for at least one full academic year in a college,
university, conservatory, or seminary (which now must be certified by
U.S. Immigration and Customs Enforcement's (ICE's) Student and Exchange
Visitor Program (SEVP)) are allowed up to 12 months of OPT to work for
a U.S. employer in a job directly related to the student's major area
of study.\12\ Employers of F-1 students already working for the
employer under OPT, would often file petitions to change the students'
status to H-1B so that these nonimmigrant students may continue working
in their current or a similar job.\13\ Many times, however, an F-1
student's OPT authorization would expire prior to the student being
able to assume the employment specified in the approved H-1B petition,
creating a gap in employment.\14\ In order to remedy this, in 2008, DHS
created the cap-gap extension to temporarily extend the period of
authorized stay, as well as work authorization, of certain F-1 students
caught in a gap between the end of their program and the start date on
their later-in-time approved, cap-subject H-1B petition.\15\ The cap-
gap extension provides a temporary bridge between F-1 and H-1B status,
allowing students to remain in the United States between the end of
their academic program and the beginning of the fiscal year, when the
student's H-1B status commences.\16\ DHS subsequently amended cap-gap
procedures by extending the authorized period of stay and work
authorization of any F-1 student who is the beneficiary of a timely
filed cap-subject H-1B petition that has been granted by, or remains
pending with, USCIS, until October 1 of the fiscal year for which H-1B
visa classification has been requested.\17\
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\12\ See 8 CFR 214.2(f)(10); ``Pre-Completion Interval Training;
F-1 Student Work Authorization,'' 57 FR 31954 (July 20, 1992).
\13\ See ``Extending Period of Optional Practical Training by 17
Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding
Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions,''
73 FR 18944, 18947 (Apr. 8, 2008), vacated, Wash. All. of Tech.
Workers v. U.S. Dep't of Homeland Sec., 156 F. Supp. 3d 123 (D.D.C.
2015), which amended the cap-gap extension. Through this interim
final rule, DHS also made other amendments, such as eliminating the
requirement that USCIS issue a Federal Register Notice in order to
extend status for students with pending H-1B petitions. Although the
2008 rule was vacated, the cap-gap extension was reinstated through
``Improving and Expanding Training Opportunities for F-1
Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All
Eligible F-1 Students,'' 81 FR 13039 (Mar. 11, 2016).
\14\ Id.
\15\ Id.
\16\ See ``Improving and Expanding Training Opportunities for F-
1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All
Eligible F-1 Students,'' 81 FR 13039 (Mar. 11, 2016).
\17\ See ``Extending Period of Optional Practical Training by 17
Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding
Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions,''
74 FR 26514 (June 3, 2009) (correction); ``Improving and Expanding
Training Opportunities for F-1 Nonimmigrant Students With STEM
Degrees and Cap-Gap Relief for All Eligible F-1 Students,'' 81 FR
13039 (Mar. 11, 2016). Through this proposed rule, DHS amended the
cap-gap procedures by no longer requiring USCIS to issue a Federal
Register notice indicating that the H-1B cap must first be met (or
would likely be met) for the current fiscal year.
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IV. Discussion of the Proposed Rule
A. Modernization and Efficiencies
1. Amending the Definition of a ``Specialty Occupation''
DHS proposes to revise the regulatory definition and standards for
a ``specialty occupation'' to better align with the statutory
definition of that term. Section 101(a)(15)(H)(i)(b) of the INA, 8
U.S.C. 1101(a)(15)(H)(i)(b), describes nonimmigrants coming to the
United States temporarily to perform services in a specialty
occupation. Section 214(i)(1) of the INA, 8 U.S.C. 1184(i)(1) states
that the term ``specialty occupation'' means: ``an occupation that
requires--(A) theoretical and practical application of a body of highly
specialized knowledge, and (B) attainment of a bachelor's or higher
degree in the specific specialty (or its equivalent) as a minimum for
entry into the occupation in the United States.''
Currently, 8 CFR 214.2(h)(4)(ii) defines ``specialty occupation''
as an occupation which requires theoretical and practical application
of a body of highly specialized knowledge in fields of human endeavor
including, but not limited to, architecture, engineering, mathematics,
physical sciences, social sciences, medicine and health, education,
business specialties, accounting, law, theology, and the arts, and
which requires the attainment of a bachelor's degree or higher in a
specific specialty, or its equivalent, as a minimum for entry into the
occupation in the United States.
This proposed rule would add language to this definition to codify
existing USCIS practice that there must be a direct relationship
between the required degree field(s) and the duties of the position;
there may be more than one acceptable degree field for a specialty
occupation; and a general degree is insufficient.\18\ Specifically,
[[Page 72875]]
DHS proposes to add language to the definition of ``specialty
occupation'' clarifying that the required specialized studies must be
directly related to the position. DHS also proposes to add language
stating that a position is not a specialty occupation if attainment of
a general degree, such as business administration or liberal arts,
without further specialization, is sufficient to qualify for the
position, and that a position may allow a range of degrees or apply
multiple bodies of highly specialized knowledge, provided that each of
those qualifying degree fields or each body of highly specialized
knowledge is directly related to the position.
---------------------------------------------------------------------------
\18\ See, e.g., Madkudu Inc., et al., v. U.S. Citizenship and
Immigration Services, et al. 5:20-cv-2653-SVK (N.D. Ca. Aug. 20,
2021) Settlement Agreement at 4 (``if the record shows that the
petitioner would consider someone as qualified for the position
based on less than a bachelor's degree in a specialized field
directly related to the position (e.g., an associate's degree, a
bachelor's degree in a generalized field of study without a minor,
major, concentration, or specialization in market research,
marketing, or research methods (see Sections II.C.1.b and c), or a
bachelor's degree in a field of study unrelated to the position),
then the position would not meet the statutory and regulatory
definitions of specialty occupation at 8 U.S.C. 1184(i)(1) and 8 CFR
214.2(h)(4)(ii).''), <a href="https://www.uscis.gov/sites/default/files/document/legal-docs/Madkudu-settlement-agreement.pdf">https://www.uscis.gov/sites/default/files/document/legal-docs/Madkudu-settlement-agreement.pdf</a> (last visited
Sep. 5, 2023).
---------------------------------------------------------------------------
A position for which a bachelor's degree in any field is sufficient
to qualify for the position, or for which a bachelor's degree in a wide
variety of fields unrelated to the position is sufficient to qualify,
would not be considered a specialty occupation as it would not require
the application of a body of highly specialized knowledge.\19\
Similarly, the amended definition clarifies that a position would not
qualify as a specialty occupation if attainment of a general degree,
without further specialization, is sufficient to qualify for the
position.\20\ The burden of proof is on the petitioner to demonstrate
that each qualifying degree field is directly related to the position.
This is consistent with the statutory requirement that a degree be ``in
the specific specialty'' and is USCIS' long-standing practice.
---------------------------------------------------------------------------
\19\ See Caremax Inc v. Holder, 40 F. Supp. 3d 1182, 1187-88
(N.D. Cal. 2014).
\20\ Although a general-purpose bachelor's degree, such as a
degree in business or business administration, may be a legitimate
prerequisite for a particular position, requiring such a degree,
without more, will not justify a conclusion that a particular
position qualifies for classification as a specialty occupation.
See, e.g., Royal Siam Corp., 484 F.3d 139, 147 (1st Cir. 2007)
(``The courts and the agency consistently have stated that, although
a general-purpose bachelor's degree, such as a business
administration degree, may be a legitimate prerequisite for a
particular position, requiring such a degree, without more, will not
justify the granting of a petition for an H-1B specialty occupation
visa.''); Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1162-1164 (D.
Minn. 1999) (the former INS did not depart from established policy
or precedent when concluding that a general degree, such as a
business administration degree, without more, does not constitute a
degree in a specialized field); Raj & Co. v. USCIS, 85 F. Supp. 3d
1241, 1246 (W.D. Wash. 2015) (it is ``well-settled in the case law
and USCIS's reasonable interpretations of the regulatory framework''
that ``a generalized bachelor['s] degree requirement is
[in]sufficient to render a position sufficiently specialized to
qualify for H-1B status.''); Vision Builders, LLC v. USCIS, No. 19-
CV-3159, 2020 WL 5891546, at *6 (D.D.C. Oct. 5, 2020) (citing Raj).
---------------------------------------------------------------------------
Under this proposed addition to 8 CFR 214.2(h)(4)(ii), the
petitioner would continue to have the burden of demonstrating that
there is a direct relationship between the required degree in a
specific specialty (in other words, the degree field(s) that would
qualify someone for the position) and the duties of the position. In
many cases, the relationship will be clear and relatively easy to
establish. For example, it should not be difficult to establish that a
required medical degree is directly related to the duties of a
physician. Similarly, a direct relationship may readily be established
between the duties of a lawyer and a required law degree and the duties
of an architect and a required architecture degree. In other cases, the
direct relationship may be less apparent, and the petitioner may have
to explain and provide documentation to meet its burden of
demonstrating the relationship. As in the past, to establish a direct
relationship, the petitioner would need to provide information
regarding the course(s) of study associated with the required degree,
or its equivalent, and the duties of the proffered position, and
demonstrate the connection between the course of study and the duties
and responsibilities of the position.
The requirement of a direct relationship between a degree in a
specific specialty, or its equivalent, and the position, however,
should not be construed as requiring a singular field of study.\21\ For
example, for the position of electrical engineer, a degree in
electrical engineering or electronics engineering may qualify a person
for the position, and therefore a minimum of a bachelor's or higher
degree, or its equivalent, in more than one field of study may be
recognized as satisfying the ``degree in the specific specialty (or its
equivalent)'' requirement of section 214(i)(1)(B) of the INA, 8 U.S.C.
1184(i)(1)(B). In such a case, the ``body of highly specialized
knowledge'' required by section 214(i)(1)(A) of the INA, 8 U.S.C.
1184(i)(1)(A), would be afforded by either degree, and each field of
study accordingly would be in a ``specific specialty'' directly related
to the position consistent with section 214(i)(1)(B) of the INA, 8
U.S.C. 1184(i)(1)(B).
---------------------------------------------------------------------------
\21\ See, e.g., Relx, Inc. v. Baran, 397 F. Supp. 3d 41, 54
(D.D.C. 2019) (``There is no requirement in the statute that only
one type of degree be accepted for a position to be specialized.'');
Residential Fin. Corp. v. U.S. Citizenship & Immigration Servs., 839
F. Supp. 2d 985, 997 (S.D. Ohio 2012) (stating that when determining
whether a position is a specialty occupation, ``knowledge and not
the title of the degree is what is important'').
---------------------------------------------------------------------------
In cases where the petitioner lists degrees in multiple disparate
fields of study as the minimum entry requirement for a position, the
petitioner has the burden of establishing how each field of study is in
a specific specialty providing ``a body of highly specialized
knowledge'' directly related to the duties and responsibilities of the
particular position. The petitioner must show that its position meets
the requirements of sections 214(i)(1)(A) and (B) of the INA, 8 U.S.C.
1184(i)(1)(A) and (B), and the regulatory definition.\22\
---------------------------------------------------------------------------
\22\ The petitioner must also establish that its position meets
one of the four criteria at proposed 8 CFR 214.2(h)(4)(iii)(A),
which is explained in detail below.
---------------------------------------------------------------------------
As such, under this proposed rule, a minimum entry requirement of a
bachelor's or higher degree, or its equivalent, in multiple disparate
fields of study would not automatically disqualify a position from
being a specialty occupation. For example, a petitioner may be able to
establish that a bachelor's degree in the specific specialties of
either education or chemistry, each of which provide a body of highly
specialized knowledge, is directly related to the duties and
responsibilities of a chemistry teacher. In such a scenario, the ``body
of highly specialized knowledge'' requirement of section 214(i)(1)(A)
of the INA, 8 U.S.C. 1184(i)(1)(A), and the ``degree in the specific
specialty'' requirement of section 214(i)(1)(B) of the INA, 8 U.S.C.
1184(i)(1)(B), would both be met by either degree and the chemistry
teacher position listing multiple disparate fields of study would
qualify as a specialty occupation.
In determining whether a position involves a specialty occupation,
USCIS currently interprets the ``specific specialty'' requirement in
section 214(i)(1)(B) of the INA, 8 U.S.C. 1184(i)(1)(B), to relate back
to the body of highly specialized knowledge requirement referenced in
section 214(i)(1)(A) of the INA, 8 U.S.C. 1184(i)(1)(A), required by
the specialty occupation in question. The ``specific specialty''
requirement is only met if the degree in a specific specialty or
specialties, or its equivalent, provides a body of highly specialized
knowledge directly related to the duties and responsibilities of the
particular position as required by section 214(i)(1)(A) of the INA, 8
U.S.C. 1184(i)(1)(A).
If the minimum entry requirement for a position is a general degree
without further specialization or an explanation of what type of degree
is required, the ``degree in the specific specialty (or its
equivalent)'' requirement of INA section 214(i)(1)(B), 8 U.S.C.
1184(i)(1)(B),
[[Page 72876]]
would not be satisfied. For example, a requirement of a general
business degree for a marketing position would not satisfy the specific
specialty requirement. In this instance, the petitioner would not
satisfactorily demonstrate how a required general business degree
provides a body of highly specialized knowledge that is directly
related to the duties and responsibilities of a marketing position.\23\
---------------------------------------------------------------------------
\23\ See Royal Siam Corp., 484 F.3d at 147.
---------------------------------------------------------------------------
Similarly, a petition with a requirement of any engineering degree
in any field of engineering for a position of software developer would
generally not satisfy the statutory requirement, as it is unlikely the
petitioner could establish how the fields of study within any
engineering degree provide a body of highly specialized knowledge
directly relating to the duties and responsibilities of the software
developer position.\24\ If an individual could qualify for a
petitioner's software developer position based on having a seemingly
unrelated engineering degree, then it cannot be concluded that the
position requires the application of a body of highly specialized
knowledge and a degree in a specific specialty, because someone with an
entirely or largely unrelated degree may qualify to perform the
job.\25\ In such a scenario, the requirements of INA sections
214(i)(1)(A) and (B), 8 U.S.C. 1184(i)(1)(A) and (B), would not be
satisfied.
---------------------------------------------------------------------------
\24\ The requirement of any engineering degree could include,
for example, a chemical engineering degree, marine engineering
degree, mining engineering degree, or any other engineering degree
in a multitude of seemingly unrelated fields.
\25\ These examples refer to the educational credentials by the
title of the degree for expediency. However, USCIS separately
evaluates whether the beneficiary's actual course of study is
directly related to the duties of the position, rather than merely
the title of the degree. When applicable, USCIS also will consider
whether the beneficiary has the education, specialized training,
and/or progressively responsible experience that is equivalent to
completion of a U.S. baccalaureate or higher degree in the specialty
occupation. See 8 CFR 214.2(h)(4)(iii)(C)(4).
---------------------------------------------------------------------------
Further, if a position requires a bachelor's degree in an
unspecified ``quantitative field'' (which could include mathematics,
statistics, economics, accounting, or physics) the petitioner must
identify specific specialties, such as the majors or degree fields,
within the wide variety of ``quantitative fields'' and establish how
each identified degree in a specific specialty provides a body of
highly specialized knowledge, consistent with INA section 214(i)(1)(A),
8 U.S.C. 1184(i)(1)(A), that is directly related to the duties and
responsibilities of the software developer position. While a position
may allow a range of degrees, and apply multiple bodies of highly
specialized knowledge, each of those qualifying degree fields or each
body of highly specialized knowledge must be directly related to the
proffered position.
2. Amending the Criteria for Specialty Occupation Positions
Under INA section 214(i)(1), 8 U.S.C. 1184(i)(1), a ``specialty
occupation'' requires attainment of a bachelor's or higher degree in
the specific specialty (or its equivalent) as a minimum for entry into
the occupation in the United States. The current regulatory criteria at
8 CFR 214.2(h)(4)(iii)(A)(1) states that a bachelor's degree is
``normally'' required. To provide additional guidance to adjudicators,
attorneys, and the public, DHS is proposing to define the term
``normally'' at proposed 8 CFR 214.2(h)(4)(iii)(A)(5) to state that,
for purposes of the criteria in this provision, ``normally'' means
``conforming to a type, standard, or regular pattern'' and is
``characterized by that which is considered usual, typical, common, or
routine.'' \26\ The proposed regulation also clarifies that
``[n]ormally does not mean always.'' For these purposes, there is no
significant difference between the synonyms ``normal,'' ``usual,''
``typical,'' ``common,'' or ``routine.'' \27\ These synonyms illustrate
that a description of an occupation that uses a synonym for the word
``normally'' in describing whether a bachelor's or higher degree is
required for the occupation can support a finding that a degree is
``normally'' required. By the same token, other synonyms for the word
``normally'' that are not listed in proposed 8 CFR
214.2(h)(4)(iii)(A)(5), such as ``mostly'' or ``frequently,'' also can
support a finding that a degree is ``normally'' required. This proposed
change clarifies that the petitioner does not have to establish that
the bachelor's degree in a specific specialty or its equivalent is
always a minimum requirement for entry into the occupation in the
United States. This is consistent with both USCIS's current practice,
as reflected by the statement on the USCIS website that ``normally,''
``common,'' and ``usually'' are not interpreted to mean ``always,''
\28\ and USCIS's rescission of a 2017 policy memorandum guiding
officers on the interpretation of the Occupational Outlook Handbook's
with respect to the computer programmer occupation.\29\ USCIS rescinded
the 2017 policy memorandum following the decision of the U.S. Court of
Appeals for the Ninth Circuit in Innova Solutions v. Baran, 983 F.3d
428 (9th Cir. 2020).\30\ As the court stated in Innova, ``the fact that
some computer programmers are hired without a bachelor's degree is
entirely consistent with a bachelor's degree `normally [being] the
minimum requirement for entry.' '' \31\ USCIS currently applies this
same rationale to other occupations. By proposing to codify USCIS's
current practice at proposed 8 CFR 214.2(h)(4)(iii)(A)(5), DHS seeks to
provide H-1B petitioners with more certainty as to what adjudication
standards apply to their petitions.
---------------------------------------------------------------------------
\26\ See Merriam-Webster Dictionary at <a href="https://www.merriam-webster.com/dictionary/normal">https://www.merriam-webster.com/dictionary/normal</a> (last visited Aug. 24, 2023).
\27\ See Innova, 983 F.3d at 432 (``There is no daylight between
typically needed, per the OOH, and normally required, per the
regulatory criteria. `Typically' and `normally' are synonyms.'').
\28\ See USCIS, ``H-1B Specialty Occupations, DOD Cooperative
Research and Development Project Workers, and Fashion Models,''
<a href="https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations">https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations</a> (last updated Feb. 8, 2023).
\29\ See USCIS, ``Rescission of 2017 Policy Memorandum PM-602-
0142,'' PM-602-0142.1, <a href="https://www.uscis.gov/sites/default/files/document/memos/PM-602-0142.1_RescissionOfPM-602-0142.pdf">https://www.uscis.gov/sites/default/files/document/memos/PM-602-0142.1_RescissionOfPM-602-0142.pdf</a> (Feb. 3,
2021).
\30\ The 2017 memorandum instructed officers not to ``generally
consider the position of [computer] programmer to qualify as a
specialty occupation,'' specifically where the proffered position
did not have a minimum entry requirement of a U.S. bachelor's or
higher and indicated that the petitioner must provide other evidence
to establish that the particular position is one in a specialty
occupation. See USCIS, Recission of the December 22, 2000 ``Guidance
memo on H1B computer related positions'', PM-602-0142, <a href="https://www.uscis.gov/sites/default/files/document/memos/PM-6002-0142-H-1BComputerRelatedPositionsRecission.pdf">https://www.uscis.gov/sites/default/files/document/memos/PM-6002-0142-H-1BComputerRelatedPositionsRecission.pdf</a> (Mar. 31, 2017).
\31\ See Innova, 983 F.3d at 432 (emphasis in original).
---------------------------------------------------------------------------
In addition, DHS proposes to codify its current practices by
revising the criteria for a specialty occupation at current 8 CFR
214.2(h)(4)(iii)(A). First, DHS proposes to replace the phrase ``To
qualify as a specialty occupation, the position must meet one of the
following criteria'' with ``A position does not meet the definition of
specialty occupation in paragraph (h)(4)(ii) of this section unless it
also satisfies at least one of the following criteria at paragraphs
(h)(4)(iii)(A)(1) through (4) of this section.'' This proposed change
would clarify that meeting one of the regulatory criteria is a
necessary part of--but not always sufficient for--demonstrating that a
position qualifies as a specialty occupation. This is not new; the
criteria at current 8 CFR 214.2(h)(4)(iii)(A) must be construed in
harmony with and in addition to other controlling regulatory provisions
and
[[Page 72877]]
with the statute as a whole.\32\ In 2000, the U.S. Court of Appeals for
the Fifth Circuit highlighted the ambiguity of the regulatory
provision's current wording, and petitioners have misinterpreted the
criteria in 8 CFR 214.2(h)(4)(iii)(A) as setting forth both the
necessary and sufficient conditions to qualify as a specialty
occupation, a reading that resulted in some positions meeting one
condition of 8 CFR 214.2(h)(4)(iii)(A), but not the definition as a
whole.\33\ These proposed changes would eliminate this source of
confusion.
---------------------------------------------------------------------------
\32\ Numerous AAO non-precedent decisions spanning several
decades have explained that the criteria at 8 CFR
214.2(h)(4)(iii)(A) must logically be read together with section
214(i)(1) of the Act and 8 CFR 214.2(h)(4)(ii), and that the
regulatory criteria must be construed in harmony with the thrust of
the related provisions and with the statute as a whole. See, e.g.,
In Re. ---, 2009 WL 4982420 (AAO Aug. 21, 2009); In Re. ---, 2009 WL
4982607 (AAO Sept. 3, 2009); In Re. 15542, 2016 WL 929725 (AAO Feb.
22, 2016); In Re. 17442092, 2021 WL 4708199 (AAO Aug. 11, 2021); In
Re. 21900502, 2022 WL 3211254 (AAO July 7, 2022).
\33\ See Defensor v. Meissner, 201 F.3d 384, 387 (5th Cir. 2000)
(stating that current 8 CFR 214.2(h)(4)(iii)(A) ``appears to
implement the statutory and regulatory definition of specialty
occupation through a set of four different standards. However, this
section might also be read as merely an additional requirement that
a position must meet, in addition to the statutory and regulatory
definition. The ambiguity stems from the regulation's use of the
phrase `to qualify as.' In common usage, this phrase suggests that
whatever conditions follow are both necessary and sufficient
conditions. Strictly speaking, however, the language logically
entails only that whatever conditions follow are necessary
conditions. . . . If Sec. 214.2(h)(4)(iii)(A) is read to create a
necessary and sufficient condition for being a specialty occupation,
the regulation appears somewhat at odds with the statutory and
regulatory definitions of `specialty occupation.' '').
---------------------------------------------------------------------------
DHS is also proposing to amend 8 CFR 214.2(h)(4)(iii)(A)(1) by
adding ``U.S.'' to ``baccalaureate,'' and replacing the word
``position'' with ``occupation,'' so that it sets forth ``the minimum
requirement for entry into the particular occupation in which the
beneficiary will be employed.'' See proposed 8 CFR
214.2(h)(4)(iii)(A)(1). Adding ``U.S.'' clarifies that a baccalaureate
degree must be a U.S. degree (or its foreign equivalent), and that a
foreign baccalaureate is not necessarily an equivalent. DHS is
proposing this change to codify longstanding practice and to reflect a
consistent standard that will align the regulation discussing the
position requirement at 8 CFR 214.2(h)(4)(iii)(A)(1) with the statutory
requirement of ``a bachelor's or higher degree in the specific
specialty (or its equivalent) as a minimum for entry into the
occupation in the United States'' at INA section 214(i)(1)(B), 8 U.S.C.
1184(i)(1)(B), as well as the regulatory requirement that an H-1B
beneficiary must have the equivalent of a U.S. baccalaureate degree at
8 CFR 214.2(h)(4)(iii)(C)(1). Replacing ``position'' with
``occupation'' would clarify that the first criterion can be satisfied
if the petitioner can show that its position falls within an
occupational category for which all positions within that category have
a qualifying minimum degree requirement.\34\ This revision would
provide added clarity to the regulatory criteria as the criteria would
flow from general to specific (i.e., occupation level to industry to
employer to position). If the occupation requires at least a bachelor's
degree in a specific specialty (e.g., architect or aeronautical
engineer) then it necessarily follows that a position in one of those
occupations would require a degree and qualify as a specialty
occupation. If the occupation does not require at least a bachelor's
degree in a specific specialty, then the petitioner could submit
evidence to show that at least a bachelor's degree in a specific
specialty (or its equivalent) is required based on U.S. industry norms,
the employer's particular requirement, or because of the particulars of
the specific position. See proposed 8 CFR 214.2(h)(4)(iii)(A)(2)
through (4). USCIS will continue its practice of consulting the U.S.
Department of Labor's (DOL's) Occupational Outlook Handbook and other
reliable and informative sources submitted by the petitioner, to assist
in its determination regarding the minimum entry requirements for
positions located within a given occupation.
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\34\ DHS generally determines a position's occupation or
occupational category by looking at the standard occupational
classification (SOC) code designated on the LCA.
---------------------------------------------------------------------------
DHS further proposes to amend 8 CFR 214.2(h)(4)(iii)(A)(2) by
consolidating this criterion's second prong into the fourth criterion.
See proposed 8 CFR 214.2(h)(4)(iii)(A)(2). The second prong of current
8 CFR 214.2(h)(4)(iii)(A)(2), which focuses on a position's complexity
or uniqueness, is similar to current 8 CFR 214.2(h)(4)(iii)(A)(4),
which focuses on a position's complexity and specialization. In
practice, they are frequently consolidated into the same analysis. This
amendment would streamline both criteria, as well as the explanation
and analysis in written decisions issued by USCIS pertaining to
specialty occupation determinations, as such decisions discuss all four
criteria and are necessarily repetitive because of the existing overlap
between 8 CFR 214.2(h)(4)(iii)(A)(2) and (4). This amendment would also
simplify the analysis because petitioners may demonstrate eligibility
under this criterion if the position is ``so specialized, complex, or
unique'', as opposed to ``so complex or unique'' under current 8 CFR
214.2(h)(4)(iii)(A)(2) and ``so specialized and complex'' under current
8 CFR 214.2(h)(4)(iii)(A)(4) (emphasis added). Notwithstanding these
amendments, the analytical framework of the first prong of proposed 8
CFR 214.2(h)(4)(iii)(A)(2) generally would remain the same. Thus, a
petitioner would satisfy proposed 8 CFR 214.2(h)(4)(iii)(A)(2) if it
demonstrates that the specialty degree requirement is normally the
minimum entry requirement for: (1) parallel positions; (2) at similar
organizations; (3) within the employer's industry in the United States.
This criterion is intended for the subset of positions with minimum
entry requirements that are determined not necessarily by occupation,
but by specific industry standards. For this criterion, DHS would
continue its practice of consulting DOL's Occupational Outlook Handbook
and other reliable and informative sources, such as information from
the industry's professional association or licensing body, submitted by
the petitioner.
USCIS proposes to change the third criterion at proposed 8 CFR
214.2(h)(4)(iii)(A)(3), in part, from stating that the employer
normally requires a ``degree or its equivalent for the position'' to
stating that the employer normally requires a ``U.S. baccalaureate or
higher degree in a directly related specific specialty, or its
equivalent, for the position.'' The additional phrase about a ``degree
in a directly related specific specialty'' would reinforce the existing
requirements for a specialty occupation, in other words, that the
position itself must require a directly related specialty degree, or
its equivalent, to perform its duties. See also proposed 8 CFR
214.2(h)(4)(iii)(A)(3). Employers requiring degrees as a proxy for a
generic set of skills would not meet this standard. Employers listing a
specialized degree as a hiring preference would not meet this standard
either. If USCIS were constrained to recognize a position as a
specialty occupation merely because an employer has an established
practice of demanding certain educational requirements for the offered
position--without consideration of whether the position actually
requires the application of a body of highly specialized knowledge
consistent with the degree requirement--then any beneficiary with a
bachelor's degree in a specific specialty could be brought
[[Page 72878]]
into the United States to perform work in a non-specialty occupation if
the employer arbitrarily imposed such a degree requirement for the non-
specialty occupation position.\35\ With respect to an employer's normal
employment practices, a petitioner could submit evidence of an
established recruiting and hiring practice to establish its
requirements for the position. Keeping the word ``normally'' in this
criterion is intended to preserve flexibility for petitioners, although
petitioners seeking to fill a position for the first time generally
would not be able to demonstrate an established practice.\36\
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\35\ See Defensor, 201 F.3d at 388 (noting ``If only [the
employer]'s requirements could be considered, then any alien with a
bachelor's degree could be brought into the United States to perform
a non-specialty occupation, so long as that person's employment was
arranged through an employment agency which required all clients to
have bachelor's degrees. Thus, aliens could obtain six year visas
for any occupation, no matter how unskilled, through the subterfuge
of an employment agency. This result is completely opposite the
plain purpose of the statute and regulations, which is to limit H1-B
[sic] visas to positions which require specialized experience and
education to perform.'').
\36\ First-time hirings are not precluded from qualifying under
one of the other criteria.
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Furthermore, DHS proposes to add ``or third party if the
beneficiary will be staffed to that third party'' to proposed 8 CFR
214.2(h)(4)(iii)(A)(3) \37\ to clarify that it is the third party's
requirements, not the petitioning employer's, that are most relevant if
the beneficiary would be staffed to a third party. This change would be
consistent with proposed 8 CFR 214.2(h)(4)(i)(B)(3), which clarifies
that when a beneficiary is staffed to a third party, it is the
requirements of that third party, and not the petitioner, that are most
relevant when determining whether the position is a specialty
occupation. This proposed revision would define ``staffed'' in the same
way to mean that the beneficiary would be contracted to fill a position
in the third party's organization. The criterion at proposed 8 CFR
214.2(h)(4)(iii)(A)(4) incorporates the second prong of current 8 CFR
214.2(h)(4)(iii)(A)(2). See proposed 8 CFR 214.2(h)(4)(iii)(A)(4). DHS
proposes no other substantive changes to this criterion. Thus, the
fourth criterion could be satisfied if the petitioner demonstrates that
the proffered position's job duties are so specialized, complex, or
unique that they necessitate the attainment of a U.S. bachelor's degree
in a directly related specific specialty, or its equivalent.
---------------------------------------------------------------------------
\37\ The full proposed regulation would read: ``The employer, or
third party if the beneficiary will be staffed to that third party,
normally requires a U.S. baccalaureate or higher degree in a
directly related specific specialty, or its equivalent, for the
position.''
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3. Amended Petitions
DHS proposes to clarify when an amended or new H-1B petition must
be filed due to a change in an H-1B worker's place of employment.
Specifically, this rule proposes to clarify that any change of work
location that requires a new LCA is itself considered a material change
and therefore requires the petitioning employer to file an amended or
new petition with USCIS before the H-1B worker may perform work under
the changed conditions. Further, DHS proposes to consolidate and
clarify guidance on when an amended or new petition is required for
short-term placement of H-1B workers at a worksite not listed on the
approved petition or corresponding LCA.\38\ These proposed changes are
not intended to depart from existing regulations and guidance, but
rather, seek to consolidate existing requirements and make clear when a
petitioner must submit an amended or new petition. DHS regulations
already require that petitioning employers file an amended or new H-1B
petition for all situations involving a material change to the
conditions of H-1B employment. Specifically, 8 CFR 214.2(h)(2)(i)(E)
states that a ``petitioner shall file an amended or new petition, with
fee, with the Service Center where the original petition was filed to
reflect any material changes in the terms and conditions of employment
or training or the alien's eligibility as specified in the original
approved petition.'' That regulation goes on to add that if the amended
or new petition is an H-1B petition, a new LCA must accompany the
petition. Additionally, 8 CFR 214.2(h)(11)(i)(A) requires a petitioner
to ``immediately notify'' USCIS of a change in the terms and conditions
of employment of a beneficiary which may affect eligibility for H-1B
status. However, USCIS seeks to clarify when an amended or new petition
must be filed or when a petitioner need not file an amended petition.
To find relevant requirements, H-1B petitioners and USCIS officers
currently must look to various sources, including USCIS policy
guidance, DOL regulations, and DOL guidance. DHS seeks to make its
regulations relating to amended or new H-1B petitions more
comprehensive and useful by incorporating relevant requirements into
proposed 8 CFR 214.2(h)(2)(i)(E)(2).
---------------------------------------------------------------------------
\38\ See USCIS, ``USCIS Final Guidance on When to File an
Amended or New H-1B Petition After Matter of Simeio Solutions,
LLC,'' PM-602-0120 (July 21, 2015), <a href="https://www.uscis.gov/sites/default/files/document/memos/2015-0721_Simeio_Solutions_Transition_Guidance_Memo_Format_7_21_15.pdf">https://www.uscis.gov/sites/default/files/document/memos/2015-0721_Simeio_Solutions_Transition_Guidance_Memo_Format_7_21_15.pdf</a>.
---------------------------------------------------------------------------
Under 8 CFR 214.2(h)(4)(i)(B), an H-1B petition for a specialty
occupation worker must include a certified LCA from DOL. DOL regulation
at 20 CFR 655.731 provides details on the LCA requirements, including
that an employer seeking to employ an H-1B worker in a specialty
occupation must attest on the LCA that it will pay the H-1B worker the
required wage rate. The required wage rate is the higher of either the
prevailing wage \39\ for the occupational classification, or the actual
wage paid by the employer to similarly situated employees, in the
geographic area of intended employment.\40\ The LCA seeks to protect
U.S. workers and their wages by disincentivizing hiring foreign workers
at lower wages. A key component to filing an LCA is determining the
appropriate wage to list on the application. Generally, a petitioning
employer is not required to use any specific methodology to determine
the prevailing wage and may utilize a wage obtained from the Office of
Foreign Labor Certification, an independent authoritative source, or
other legitimate sources of wage data.\41\ While there are many factors
that may be considered when determining the prevailing wage, one of the
most significant is the geographic area where the H-1B worker will
perform their duties. Because prevailing wages differ, often
significantly, from location to location, a change in geographic area
of intended employment that goes beyond the current metropolitan
statistical area
[[Page 72879]]
(MSA) often will have an impact on the prevailing wage, requiring a new
LCA.
---------------------------------------------------------------------------
\39\ 20 CFR 655.731(a)(2)(ii) states that, if the job
opportunity is not covered by a collective bargaining agreement, the
prevailing wage shall be the arithmetic mean of the wages of workers
similarly employed, except that the prevailing wage shall be the
median when provided by paragraphs (a)(2)(ii)(A), (b)(3)(iii)(B)(2),
and (b)(3)(iii)(C)(2) of 20 CFR 655.731. An employer is not
permitted to pay a wage that is lower than a wage required under any
other applicable Federal, State or local law.
\40\ Pursuant to 20 CFR 655.715, ``Area of intended employment''
means the area within normal commuting distance of the place
(address) of employment where the H-1B nonimmigrant is or will be
employed. There is no rigid measure of distance which constitutes a
normal commuting distance or normal commuting area, because there
may be widely varying factual circumstances among different areas
(e.g., normal commuting distances might be 20, 30, or 50 miles). If
the place of employment is within a Metropolitan Statistical Area
(MSA) or a Primary Metropolitan Statistical Area (PMSA), any place
within the MSA or PMSA is deemed to be within normal commuting
distance of the place of employment; however, all locations within a
Consolidated Metropolitan Statistical Area (CMSA) will not
automatically be deemed to be within normal commuting distance. The
borders of MSAs and PMSAs are not controlling with regard to the
identification of the normal commuting area; a location outside of
an MSA or PMSA (or a CMSA) may be within normal commuting distance
of a location that is inside (e.g., near the border of) the MSA or
PMSA (or CMSA).
\41\ See 20 CFR 655.731(a)(2).
---------------------------------------------------------------------------
In its precedent decision Matter of Simeio Solutions, LLC, 26 I&N
Dec. 542 (AAO 2015), USCIS's Administrative Appeals Office (AAO) held
that a change in geographic area of employment that would require a new
LCA is considered a material change for purposes of 8 CFR
214.2(h)(2)(i)(E) and (h)(11)(i)(A) because the new LCA may impact
eligibility under 8 CFR 214.2(h)(4)(i)(B)(1). For example, a change in
location may impact eligibility if the new location is in an MSA with a
higher wage. USCIS provided additional guidance implementing Matter of
Simeio Solutions in July 2015 in its policy memorandum ``USCIS Final
Guidance on When to File an Amended or New H-1B Petition After Matter
of Simeio Solutions, LLC.'' \42\
---------------------------------------------------------------------------
\42\ See USCIS, ``USCIS Final Guidance on When to File an
Amended or New H-1B Petition After Matter of Simeio Solutions,
LLC,'' PM-602-0120 (July 21, 2015), <a href="https://www.uscis.gov/sites/default/files/document/memos/2015-0721_Simeio_Solutions_Transition_Guidance_Memo_Format_7_21_15.pdf">https://www.uscis.gov/sites/default/files/document/memos/2015-0721_Simeio_Solutions_Transition_Guidance_Memo_Format_7_21_15.pdf</a>.
---------------------------------------------------------------------------
In proposed 8 CFR 214.2(h)(2)(i)(E)(2), DHS proposes to specify
that ``Any change in the place of employment to a geographical area
that requires a corresponding labor condition application to be
certified to USCIS is considered a material change and requires an
amended or new petition to be filed with USCIS before the H-1B worker
may begin work at the new place of employment.'' Further, DHS proposes
to specify in proposed 8 CFR 214.2(h)(2)(i)(E)(2) that ``[t]he amended
or new petition must be properly filed before the material change(s)
takes place''. This would codify current USCIS practice as articulated
in its policy memorandum ``USCIS Final Guidance on When to File an
Amended or New H-1B Petition After Matter of Simeio Solutions, LLC,''
which discusses the ``USCIS position that H-1B petitioners are required
to file an amended or new petition before placing an H-1B employee at a
new place of employment not covered by an existing, approved H-1B
petition.'' As with current USCIS practice, proposed 8 CFR
214.2(h)(2)(i)(E)(2) would allow the worker to begin working under the
materially changed terms and conditions of employment upon the filing
of the amended or new petition, assuming all other requirements and
terms of eligibility are met. They would not need to wait for a final
decision on the amended or new petition in order to begin working if
eligible in accordance with existing portability provisions at 8 CFR
214.2(h)(2)(i)(H). If while the amended or new petition is pending
adjudication another material change occurs, an employer must file
another amended or new petition to account for the new changes.\43\ If
that amended or new petition is denied, the H-1B worker generally may
return to the position and worksite listed on the most recently
approved petition as long as that petition and corresponding LCA are
still valid.\44\
---------------------------------------------------------------------------
\43\ See id. at 7.
\44\ See id.
---------------------------------------------------------------------------
Proposed 8 CFR 214.2(h)(2)(i)(E)(2) would also set forth limited
circumstances in which a change to the beneficiary's place of
employment would not require the petitioner to file an amended
petition. Proposed 8 CFR 214.2(h)(2)(i)(E)(2)(i) states that moving a
beneficiary to a new job location within the same area of intended
employment as listed on the LCA would not require an amended petition,
assuming there are no other material changes. This would be consistent
with INA section 212(n)(4), which provides that a change in the
worksite location within the same MSA of the existing LCA would
generally be deemed to be within the area of employment.\45\ Note that
proposed 8 CFR 214.2(h)(2)(i)(E)(2)(i) does not purport to set forth
all relevant DOL requirements, such as the requirement that the
petitioning employer post notice of the LCA, either electronically or
in hard-copy, in the new work location on or before the date that the
H-1B worker performs any work at the new location.\46\
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\45\ See also 20 CFR 655.734; DOL, Wage and Hour Division,
``Fact Sheet #62J: What does `place of employment' mean?'' (July
2008), <a href="https://www.dol.gov/agencies/whd/fact-sheets/62j-h1b-worksite">https://www.dol.gov/agencies/whd/fact-sheets/62j-h1b-worksite</a>
(``The employer need not obtain a new LCA for another worksite
within the geographic area of intended employment where the employer
already has an existing LCA for that area.'').
\46\ See 20 CFR 655.734(a)(2).
---------------------------------------------------------------------------
Additionally, proposed 8 CFR 214.2(h)(2)(i)(E)(2)(ii) would set
forth the specific durations for short-term placements that would not
require an amended or new petition, assuming there are no other
material changes. This would be consistent with DOL regulations at 20
CFR 655.735 in which short-term placements of less than 30 days, or in
some cases 60 days, do not require a new LCA or an amended or new
petition, provided there are no material changes.
Proposed 8 CFR 214.2(h)(2)(i)(E)(2)(iii) would clarify that an
amended or new petition would not be required when a beneficiary is
going to a non-worksite location to participate in employee
development, will be spending little time at any one location, or will
perform a peripatetic job. Proposed 8 CFR 214.2(h)(2)(i)(E)(2)(iii)
provides examples of ``peripatetic jobs'' including situations where
the job is primarily at one location, but the beneficiary occasionally
travels for short periods to other locations on a casual, short-term
basis, which can be recurring but not excessive (i.e., not exceeding 5
consecutive workdays for any one visit by a peripatetic worker, or 10
consecutive workdays for any one visit by a worker who spends most work
time at one location and travels occasionally to other locations).
Proposed 8 CFR 214.2(h)(2)(i)(E)(2)(iii) would be consistent with DOL
regulations at 20 CFR 655.715, which sets forth several criteria for
what would not constitute a ``place of employment'' or ``worksite,'' as
well as what would constitute an ``employee developmental activity,''
for purposes of requiring a new LCA.
Note that proposed 8 CFR 214.2(h)(2)(i)(E)(2) would not codify all
relevant considerations related to when to file an amended petition.
Stakeholders should still consult DOL regulations and policy guidance
when considering if an amended petition is necessary. Nevertheless, DHS
believes its proposed changes to 8 CFR 214.2(h)(2)(i)(E)(2) would still
be beneficial by providing additional clarity about when a change in an
H-1B worker's place of employment constitutes a material change
requiring an amended or new petition.
DHS proposes to revise and redesignate current 8 CFR
214.2(h)(2)(i)(E) as proposed 8 CFR 214.2(h)(2)(i)(E)(1) so that this
provision would be applicable to all H classifications, while proposed
8 CFR 214.2(h)(2)(i)(E)(2) would be specific to H-1B nonimmigrants. In
proposed 8 CFR 214.2(h)(2)(i)(E)(1), DHS proposes minor changes to
clarify that an amended or new H-1B petition requires a current or new
certified labor condition application.
[[Page 72880]]
4. Deference
DHS seeks to codify and clarify its existing deference policy at
proposed 8 CFR 214.1(c)(5). Deference helps promote consistency and
efficiency for both USCIS and its stakeholders. The deference policy
instructs officers to consider prior determinations involving the same
parties and facts, when there is no material error with the prior
determination, no material change in circumstances or in eligibility,
and no new material information adversely impacting the petitioner's,
applicant's, or beneficiary's eligibility. Through this proposed
regulation, DHS seeks to clarify when petitioners may expect
adjudicators to exercise deference in reviewing their petitions, so
petitioners will be more likely to submit necessary, relevant
supporting evidence. This creates predictability for petitioners and
beneficiaries and leads to fairer and more reliable outcomes. Codifying
and clarifying when USCIS gives deference would also better ensure
consistent adjudications.
In 2004, USCIS issued a memorandum discussing the significance of
prior USCIS adjudications.\47\ The memorandum acknowledged that USCIS
is not bound to approve subsequent petitions or applications where
eligibility has not been demonstrated merely because of a prior
approval, which may have been erroneous. Nevertheless, where there has
been no material change in the underlying facts, the memorandum
specified that adjudicators should defer to a prior determination
involving the same parties and underlying facts unless there was a
material error, a substantial change in circumstances, or new material
information that adversely impacts eligibility. On October 23, 2017,
USCIS rescinded that guidance, expressing concern that the 2004
memorandum shifted the burden from a petitioner to USCIS.\48\ Rather
than attempt to address any perceived concerns, the 2017 memorandum
rescinded the 2004 policy entirely. On April 27, 2021, USCIS
incorporated its deference policy into the USCIS Policy Manual,
acknowledging that adjudicators are not required to approve subsequent
petitions or applications where eligibility has not been demonstrated
strictly because of a prior approval (which may have been erroneous),
but stressing that they should defer to prior determinations involving
the same parties and underlying facts.\49\ As stated in the USCIS
Policy Manual, deviation from a previous approval carries important
consequences and implicates predictability and consistency
concerns.\50\
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\47\ See USCIS, ``The Significance of a Prior CIS Approval of a
Nonimmigrant Petition in the Context of a Subsequent Determination
Regarding Eligibility for Extension of Petition Validity,'' HQPRD
72/11.3 (Apr. 23, 2004).
\48\ See USCIS, ``Rescission of Guidance Regarding Deference to
Prior Determinations of Eligibility in the Adjudication of Petitions
for Extension of Nonimmigrant Status,'' PM-602-0151 (Oct. 23, 2017).
\49\ See USCIS, ``Deference to Prior Determinations of
Eligibility in Requests for Extensions of Petition Validity, Policy
Alert,'' PA-2021-05 (April 27, 2021), <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210427-Deference.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210427-Deference.pdf</a>
(last visited on Mar. 23, 2023).
\50\ See USCIS Policy Manual, Volume 2, ``Nonimmigrants,'' Part
A, ``Nonimmigrant Policies and Procedures'', Chapter 4, ``Extension
of Stay, Change of Status, and Extension of Petition Validity,''
Section B, ``Extension of Petition Validity,'' <a href="https://www.uscis.gov/policy-manual/volume-2-part-a-chapter-4">https://www.uscis.gov/policy-manual/volume-2-part-a-chapter-4</a>.
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Consistent with current guidance in the USCIS Policy Manual,
proposed 8 CFR 214.1(c)(5) would provide that when adjudicating a
request filed on Form I-129 involving the same parties and the same
underlying facts, USCIS gives deference to its prior determination of
the petitioner's, applicant's, or beneficiary's eligibility. However,
USCIS need not give deference to a prior approval if: there was a
material error involved with a prior approval; there has been a
material change in circumstances or eligibility requirements; or there
is new, material information that adversely impacts the petitioner's,
applicant's, or beneficiary's eligibility.
Proposed 8 CFR 214.1(c)(5) would apply to all nonimmigrants using
Form I-129, Petition for a Nonimmigrant Worker, and would include a
request on Form I-129 involving the same parties and same material
facts. Currently, the USCIS Policy Manual frames its deference policy
as applying to requests for an ``extension of petition validity.'' \51\
The phrase ``extension of petition validity'' may be misread as
limiting USCIS's deference policy to petition extensions and excluding
other types of requests that could involve the same parties and same
material facts. Thus, DHS proposes to more broadly frame proposed 8 CFR
214.1(c)(5) as applying to ``a request filed on Form I-129'' and would
not use the term ``extension of petition validity'' as found in the
current USCIS Policy Manual.
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\51\ See id.
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5. Evidence of Maintenance of Status
DHS seeks to clarify current requirements and codify current
practices concerning evidence of maintenance of status at proposed 8
CFR 214.1(c)(1) through (7). Maintenance of status in this context
generally refers to the applicant or beneficiary abiding by the terms
and conditions of admission or extension of stay, as applicable (for
example, if admitted as an H-1B nonimmigrant, the individual worked
according to the terms and conditions of the H-1B petition approval on
which their status was granted and did not engage in activities that
would constitute a violation of status, such as by working without
authorization). Primarily, DHS seeks to clarify that evidence of
maintenance of status is required for petitions where there is a
request to extend or amend the beneficiary's stay. These changes would
impact the population of nonimmigrants named in 8 CFR 214.1(c)(1): E-1,
E-2, E-3, H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3,
Q-1, R-1, and TN nonimmigrants.
First, DHS would add a new provision at proposed 8 CFR 214.1(c)(6),
which would provide, in part, that an applicant or petitioner seeking
an extension of stay must submit supporting evidence to establish that
the applicant or beneficiary maintained the previously accorded
nonimmigrant status before the extension request was filed.\52\
Proposed 8 CFR 214.1(c)(6) would further provide that evidence of such
maintenance of status may include, but is not limited to: copies of
paystubs, W-2 forms, quarterly wage reports, tax returns, contracts,
and work orders. This is consistent with the nonimmigrant petition form
instructions, which state that for all classifications, if a
beneficiary is seeking a change of status (COS) or extension of stay,
evidence of maintenance of status must be included with the new
petition.\53\ The form instructions further state that if the
beneficiary is employed in the United States, the petitioner may submit
copies of the beneficiary's last two pay stubs, Form W-2, and other
relevant evidence, as well as a copy of the beneficiary's Form I-94,
passport, travel document, or Form I-797.\54\ By proposing to codify
these instructions, DHS hopes to clarify that petitioners should
demonstrate such eligibility by submitting supporting documentation
upfront with the extension of stay request, rather than waiting for
USCIS to issue a request for additional
[[Page 72881]]
information such as a request for evidence (RFE) or notice of intent to
deny (NOID). Under proposed 8 CFR 214.1(c)(6) DHS further proposes to
include additional examples of evidence to demonstrate maintenance of
status, which include, but are not limited to: quarterly wage reports,
tax returns, contracts, and work orders. By clearly stating what types
of supporting documentation will help USCIS in adjudicating extension
petitions, DHS hopes to further reduce the need for RFEs and NOIDs,
which can be burdensome to both USCIS and petitioners.
---------------------------------------------------------------------------
\52\ This is subject to the exception in 8 CFR 214.1(c)(4).
\53\ See USCIS, Form I-129 Instructions, ``Instructions for
Petition for Nonimmigrant Worker,'' at 6, <a href="https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf">https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf</a> (last visited Aug.
23, 2023).
\54\ See id.
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Requiring petitioners (or applicants, in the case of E
nonimmigrants) to submit supporting evidence to establish that the
beneficiary (or applicant) maintained the previously accorded
nonimmigrant status before the extension of stay request was filed
would not conflict with USCIS's current and proposed deference policy.
Although USCIS defers to prior USCIS determinations of eligibility in
extension requests, USCIS would not be able to defer to a prior
determination of maintenance of status during the preceding stay
because it would not have made such a determination until adjudicating
the extension of stay request. Even if there was a prior determination,
USCIS need not give deference when there was a material error involved
with a prior approval; a material change in circumstances or
eligibility requirements; or new, material information that adversely
impacts the petitioner's, applicant's, or beneficiary's eligibility.
Without supporting evidence to demonstrate maintenance of status, it is
unclear how USCIS would determine if there was a material error,
material change, or other new material information. For example,
evidence pertaining to the beneficiary's continued employment (e.g.,
paystubs) may help USCIS to determine whether the beneficiary was being
employed consistent with the prior petition approval or whether there
might have been material changes in the beneficiary's employment (e.g.,
a material change in the place of employment).
Thus, proposed 8 CFR 214.1(c)(6) would make clear that it is the
filers' burden to demonstrate that status was maintained before the
extension of stay request was filed. This would be consistent with
current 8 CFR 214.1(c)(4), which states that, ``An extension of stay
may not be approved for an applicant who failed to maintain the
previously accorded status . . ., '' as well as proposed 8 CFR
214.1(c)(4)(i), which would state that, ``An extension or amendment of
stay may not be approved for an applicant or beneficiary who failed to
maintain the previously accorded status . . .''
In line with proposed 8 CFR 214.1(c)(6), DHS is proposing to amend
8 CFR 214.2(h)(14) by removing the sentence ``Supporting evidence is
not required unless requested by the director.'' This sentence causes
confusion because it implies that supporting evidence is not required,
contrary to current 8 CFR 214.1(c)(1) (a request for an extension of
stay must be filed ``on the form designated by USCIS, . . . with the
initial evidence specified in Sec. 214.2, and in accordance with the
form instructions'') and the form instructions (``[f]or all
classifications, if a beneficiary is seeking a [COS] or extension of
stay, evidence of maintenance of status must be included with the new
petition'').\55\ Removing this sentence from proposed 8 CFR
214.2(h)(14) should further reduce the need for RFEs or NOIDs.
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\55\ See USCIS, Form I-129 Instructions, ``Instructions for
Petition for Nonimmigrant Worker,'' at 6, <a href="https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf">https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf</a> (last visited Aug.
23, 2023).
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For the same reasons, DHS is also proposing to remove the same or
similar sentence found in the regulations for the L, O, and P
nonimmigrant classifications. Specifically, DHS proposes to amend 8 CFR
214.2(l)(14)(i) by removing the sentence ``Except in those petitions
involving new offices, supporting documentation is not required, unless
requested by the director.'' DHS proposes to amend 8 CFR 214.2(o)(11)
and (p)(13) by removing the sentence ``Supporting documents are not
required unless requested by the Director.'' DHS is proposing technical
changes to add the word ``generally'' to 8 CFR 214.2(l)(14)(i),
(o)(11), and (p)(13), to account for untimely filed extensions that are
excused consistent with 8 CFR 214.1(c)(4). As stated above, removing
this sentence should reduce the need for RFEs or NOIDs. Further, it
would not add an additional burden on the petitioner or applicant.
In addition, DHS proposes to codify its longstanding practice of
requiring evidence of maintenance of status for petitions requesting to
amend a beneficiary's stay in the United States. The proposed rule
would add language to clarify that the petitioner must submit initial
evidence that the beneficiary maintained the previously accorded status
before the amendment of stay petition was filed. Failure to establish
maintenance of status would result in a denial of the request to amend
the beneficiary's stay in the United States, unless USCIS determines
that the failure to timely file the amendment of stay was due to
extraordinary circumstances. See proposed 8 CFR 214.1(c)(1), (4), (6),
and (7). DHS would also update the Form I-129, Petition for a
Nonimmigrant Worker, as well as the form filing instructions to
coincide with and support these changes, as well as provide clarity
about when an amended petition is appropriate, including the
requirement of establishing maintenance of status for amendment of stay
requests.
Current 8 CFR 214.1(c)(1) generally requires evidence of
maintenance of status with an extension of stay request, and 8 CFR
214.1(c)(4) generally states that an extension of stay may not be
approved where a beneficiary failed to maintain the previously accorded
status. DHS proposes to add specific references to requests to ``amend
the terms and conditions of the nonimmigrant's stay without a request
for additional time'' or for an ``amendment of stay'' to proposed 8 CFR
214.1(c)(1), (4), (6), and (7), so that these regulations clearly
convey that evidence of maintenance of status is also required for
petitions requesting to amend a beneficiary's stay in the United
States, even when the petition is not requesting additional time beyond
the period previously granted. For example, a petitioner may request to
amend the stay of the beneficiary when filing an amended petition but
not seek additional time for the beneficiary's stay because the
beneficiary may have an unexpired I-94 that has been granted until the
end of the 6-year period of admission and is not yet eligible for an
exemption from the 6-year period of admission limitation. In that
example, the petitioner may seek authorization for the beneficiary to
remain in the United States, but under different terms and conditions
than previously granted, without requesting additional time. A
petitioner filing an amended petition with a request to amend the terms
and conditions of the beneficiary's stay, but without a request for
additional time, would not specifically request an ``extension of
stay'' on the Form I-129 petition. Nevertheless, DHS considers a
petition requesting to amend the terms and conditions of the
beneficiary's stay to be substantively equivalent to an extension of
stay request for purposes of establishing maintenance of status and
will exercise discretion when granting such requests. In other words,
DHS considers an amendment of stay request as a request to continue to
allow the beneficiary to remain in the United States based upon the
amended
[[Page 72882]]
conditions for a period of stay that has already been granted.
Therefore, DHS believes that it is reasonable to require evidence that
maintenance of status has been satisfied, before USCIS may favorably
exercise its discretion to grant an amendment of stay request. Further,
including amendments of stay under 8 CFR 214.1(c) would close a
potential loophole of using an amended petition for a beneficiary who
has not maintained status, yet wishes to remain in the United States,
without having to depart and be readmitted in that status.
Currently, most petitioners filing to amend a beneficiary's stay
already submit evidence of maintenance of status; however, if an
amended petition does not contain evidence of maintenance of status,
USCIS typically issues a request for such evidence. By proposing to
codify current practice in 8 CFR 214.1(c), DHS hopes to clarify that
petitioners should demonstrate eligibility by submitting evidence of
maintenance of status with the amendment of stay request (just like
with an extension of stay request), rather than waiting for USCIS to
request this information. By clearly stating what types of supporting
documentation will help USCIS in adjudicating requests to amend a
beneficiary's stay, DHS hopes to further reduce the need for RFEs and
NOIDs, which can be burdensome for petitioners and USCIS, and generally
extends the time needed to complete the adjudication of the petition.
Specifically, DHS proposes to revise 8 CFR 214.1(c)(4), to add a
reference to an ``amendment'' of stay. Aside from clarifying that
evidence of maintenance of status would be required in an amendment of
stay request, this change would also clarify that USCIS can excuse the
late filing of an amendment of stay request under the circumstances
described at proposed 8 CFR 214.1(c)(4)(i)(A) through (D). ``Late
filing'' in this context would include certain extension of stay
requests filed after the expiration date on the Form I-94. A ``late
filing'' would also encompass, for example, a request for an amendment
of stay that was filed after the beneficiary temporarily stopped
working due to extraordinary circumstances beyond their control. DHS
would clarify in proposed 8 CFR 214.1(c)(4)(ii) that, if USCIS excuses
the late filing of an amendment of stay request, it would do so without
requiring the filing of a separate application or petition and would
grant the amendment of stay, if otherwise eligible, from the date the
petition was filed.\56\
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\56\ Proposed 8 CFR 214.1(c)(4)(ii) would continue to state,
with minor revisions, that if USCIS excuses the late filing of an
extension of stay request, it will do so without requiring the
filing of a separate application or petition and will grant the
extension of stay from the date the previously authorized stay
expired or the amendment of stay from the date the petition was
filed.
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DHS proposes nonsubstantive edits to improve readability to 8 CFR
214.1(c)(4). DHS also proposes nonsubstantive edits in proposed 8 CFR
214.1(c)(1) and (4) to add references to a ``beneficiary,''
``petition,'' or ``Form I-129,'' to account for the extension or
amendment of stay being requested on the Form I-129 petition, and to
replace ``alien'' with ``beneficiary'' and ``Service'' with ``USCIS.''
With respect to proposed 8 CFR 214.1(c)(7), this provision would
contain the same language as current 8 CFR 214.1(c)(5), except that DHS
would add references to an ``amendment'' of stay and make other
nonsubstantive edits similar to the ones described above.
6. Eliminating the Itinerary Requirement for H Programs
DHS is proposing to eliminate the H programs' itinerary
requirement. See proposed 8 CFR 214.2(h)(2)(i)(B) and (F). Current 8
CFR 214.2(h)(2)(i)(B) states that ``A petition that requires services
to be performed or training to be received in more than one location
must include an itinerary with the dates and locations of the services
or training and must be filed with USCIS as provided in the form
instructions.'' In addition, current 8 CFR 214.2(h)(2)(i)(F), for
agents as petitioners, contains itinerary requirement language.
The information provided in an itinerary is largely duplicative of
information already provided in the LCA for H-1B petitions and the
temporary labor certification (TLC) for H-2 petitions. The LCA and TLC
require the petitioner to the list the name and address where work will
be performed, as well as the name and address of any secondary entity
where work will be performed. It is also largely duplicative of
information already provided on the Form I-129, which requires the
petitioner to provide the address where the beneficiary will work if
different from the petitioner's address listed on the form.\57\
Therefore, eliminating the itinerary requirement would reduce
duplication that increases petitioner burden and promote more efficient
adjudications, without compromising program integrity. Furthermore,
USCIS no longer applies the itinerary requirement to H-1B petitions
governed by 8 CFR 214.2(h)(2)(i)(B), as memorialized in USCIS Policy
Memorandum PM-602-0114, ``Rescission of Policy Memoranda'' (June 17,
2020) (rescinding USCIS Policy Memorandum PM-602-0157, ``Contracts and
Itineraries Requirements for H-1B Petitions Involving Third-Party
Worksites'' (Feb. 22, 2018)).\58\
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\57\ See USCIS, Form I-129, ``Petition for a Nonimmigrant
Worker,'' <a href="https://www.uscis.gov/sites/default/files/document/forms/i-129.pdf">https://www.uscis.gov/sites/default/files/document/forms/i-129.pdf</a> (last visited Mar. 14, 2023).
\58\ USCIS issued policy memorandum PM-602-0114 following the
decision of the U.S. District Court for the District of Columbia in
ITServe Alliance, Inc. v. Cissna, 443 F. Supp. 3d 14, 42 (D.D.C.
2020) (``the itinerary requirement in the INS 1991 Regulation
[codified at 8 CFR 214.2(h)(2)(i)(B)] . . has been superseded by
statute and may not be applied to H-1B visa applicants''). See also
Serenity Info Tech, Inc. v. Cuccinelli, 461 F. Supp. 3d 1271, 1285
(N.D. Ga. 2020) (citing ITServe).
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To eliminate the unnecessary duplication of work, DHS also proposes
to eliminate the itinerary requirement for agents acting as petitioners
at current 8 CFR 214.2(h)(2)(i)(F). In proposing to eliminate the
itinerary requirement for agents at paragraph (h)(2)(i)(F), DHS also
proposes to incorporate technical changes to this provision by moving
language currently found in paragraph (h)(2)(i)(F)(2) to paragraph
(h)(2)(i)(F)(1); removing paragraph (h)(2)(i)(F)(2); and redesignating
current paragraph (h)(2)(i)(F)(3) as proposed paragraph
(h)(2)(i)(F)(2). Proposed 8 CFR 214.2(h)(2)(i)(F)(1) would incorporate
the following language currently found in paragraph (h)(2)(i)(F)(2):
``The burden is on the agent to explain the terms and conditions of the
employment and to provide any required documentation. In questionable
cases, a contract between the employers and the beneficiary or
beneficiaries may be required.'' This proposed restructuring at 8 CFR
214.2(h)(2)(i)(F) is intended to simplify and consolidate the guidance
for agents as petitioners following the removal of the itinerary
requirement language.
7. Validity Expires Before Adjudication
DHS proposes to allow H-1B petitions to be approved or have their
requested validity period dates extended if USCIS adjudicates and deems
the petition approvable after the initially requested validity period
end-date, or the period for which eligibility has been established, has
passed. This typically would happen if USCIS deemed the petition
approvable upon a favorable motion to reopen, motion to reconsider, or
appeal. Specifically, under proposed 8 CFR 214.2(h)(9)(ii)(D)(1), if
USCIS adjudicates an H-1B petition and deems it otherwise approvable
after the initially requested validity period end-
[[Page 72883]]
date, or the last day for which eligibility has been established, USCIS
may issue an RFE asking whether the petitioner wants to update the
dates of intended employment.
If in response to the RFE the petitioner confirms that it wants to
update the dates of intended employment and submits a different LCA
that corresponds to the new requested validity dates, even if that LCA
was certified after the date the H-1B petition was filed, and assuming
all other eligibility criteria are met, USCIS would approve the H-1B
petition for the new requested period or the period for which
eligibility has been established, as appropriate, rather than require
the petitioner to file a new or amended petition. The petitioner's
request for new dates of employment and submission of an LCA with a new
validity period that properly corresponds to the revised requested
validity period on the petition and an updated prevailing or proffered
wage, if applicable, would not be considered a material change, except
that the petitioner may not reduce the proffered wage from that
originally indicated in their petition. See proposed 8 CFR
214.2(h)(9)(ii)(D)(1). However, the total petition validity period
would still not be able to exceed 3 years.
Currently, if USCIS adjudicates and deems these types of petitions
approvable after the initially requested validity period, or the last
day for which eligibility has been established, has elapsed, the
petition must be denied. The petitioner is also not able to change the
requested validity period using the same petition. Instead, the
petitioner must file an amended or new petition requesting a new
validity period if they seek to employ or continue to employ the
beneficiary. See 8 CFR 214.2(h)(2)(i)(E) and (h)(11)(i)(A). The
requirement to file an amended or new petition in this circumstance
results in additional filing costs and burden for the petitioner. It
also results in unnecessary expenditures of USCIS resources to intake
and adjudicate another petition, even though the only change generally
is a new requested validity period due to the passage of time. This is
not an efficient use of USCIS or the petitioner's resources. In certain
circumstances this requirement may also result in the H-1B beneficiary
losing their cap number, which generally would be an unequitable result
for a petition that was otherwise approvable.
Aside from changing the requested validity period, the petitioner
would also be able to increase the proffered wage to conform with a new
prevailing wage if the prevailing wage has increased due to the passage
of time. The petitioner would also be able to increase the proffered
wage for other reasons, such as to account for other market wage
adjustments. An increase to the proffered wage would not be considered
a material change, so long as there are no other material changes to
the position. However, a petitioner would not be allowed to reduce the
proffered wage, even if the prevailing wage decreased due to the
passage of time. If the petitioner intends to reduce the proffered wage
or make any other material change to the proposed employment, it would
have to file an amended or new petition in accordance with existing
provisions at 8 CFR 214.2(h)(2)(i)(E) and (h)(11)(i)(A).
Under proposed 8 CFR 214.2(h)(9)(ii)(D), USCIS would not be
required to issue an RFE, as it could instead proceed to approve the
petition for the originally requested period or until the last day for
which eligibility has been established, as appropriate. For example,
USCIS would not be required to issue an RFE when the beneficiary has
already been granted H-1B status through another employer, changed
nonimmigrant status, adjusted status, or has reached their 6-year
limitation on stay, such that an RFE asking the petitioner if they want
to update the requested dates of H-1B employment would serve little or
no purpose. Consistent with these examples, DHS would consider
potential factors that could inform whether USCIS issues an RFE as
including, but not limited to, additional petitions filed or approved
on the beneficiary's behalf, or the beneficiary's eligibility for
additional time in H-1B status. See proposed 8 CFR
214.2(h)(9)(ii)(D)(1) and (2).
Proposed 8 CFR 214.2(h)(9)(ii)(D)(2) provides that if no RFE is
issued concerning the requested dates of employment, or if the
petitioner does not respond, or the response to the RFE does not
support new dates of employment, the petition would be approved, if
otherwise approvable, for the originally requested period or until the
last day for which eligibility has been established, as appropriate.
The last day for which eligibility has been established could, for
example, be the date the beneficiary reached their six-year maximum
limitation on stay, or the end date of the supporting LCA, or one year
from approval in case of temporary licensure. If the petition is
approved for the originally requested period or the last day for which
eligibility has been established, the petition would not be forwarded
to the U.S. Department of State (DOS) nor would any accompanying
request for a COS, extension of stay, or amendment of stay, be granted
because the validity period would have already expired and would
therefore not support issuance of a visa or a grant of status.
B. Benefits and Flexibilities
1. H-1B Cap Exemptions
DHS proposes to revise the requirements to qualify for H-1B cap
exemption under 8 CFR 214.2(h)(8)(iii)(F)(4) when a beneficiary is not
directly employed by a qualifying institution, organization, or entity.
DHS also proposes to revise the definition of ``nonprofit research
organization'' and ``governmental research organization'' under 8 CFR
214.2(h)(19)(iii)(C). These proposed changes are intended to clarify,
simplify, and modernize eligibility for cap-exempt H-1B employment, so
that they are less restrictive and better reflect modern employment
relationships. The proposed changes are also intended to provide
additional flexibility to petitioners to better implement Congress's
intent to exempt from the annual H-1B cap certain H-1B beneficiaries
who are employed at a qualifying institution, organization, or entity.
Congress set the current annual regular cap for the H-1B visa
category at 65,000. See INA section 214(g)(1)(A), 8 U.S.C.
1184(g)(1)(A). Not all H-1B nonimmigrant visas (or grants of H-1B
status) are subject to this annual cap. INA section 214(g)(5) allows
certain employers to employ H-1B nonimmigrant workers without being
subject to the annual numerical cap. See INA section 214(g)(5), 8
U.S.C. 1184(g)(5). For example, INA section 214(g)(5)(A) and (B)
exempts those workers who are employed at an institution of higher
education or a related or affiliated nonprofit entity, a nonprofit
research organization or a governmental research organization. See INA
section 214(g)(5)(A)-(B), 8 U.S.C. 1184(g)(5)(A)-(B).
Currently, DHS regulations state that an H-1B nonimmigrant worker
is exempt from the cap if employed by: (1) an institution of higher
education; (2) a nonprofit entity related to or affiliated with such an
institution; (3) a nonprofit research organization; or (4) a
governmental research organization. See 8 CFR 214.2(h)(8)(iii)(F)(1)
through (3). DHS regulations also state that an H-1B nonimmigrant
worker may be exempt from the cap when they are not ``directly
employed'' by a qualifying institution, organization, or entity, if
they are employed at a qualifying
[[Page 72884]]
institution, organization, or entity so long as: (1) the majority of
the worker's work time will be spent performing job duties at a
qualifying institution, organization, or entity; and (2) the worker's
job duties will directly and predominately further the essential
purpose, mission, objectives or functions of the qualifying
institution, organization or entity. See 8 CFR 214.2(h)(8)(iii)(F)(4).
When relying on this exemption, the H-1B petitioner must also establish
that there is a nexus between the work to be performed and the
essential purpose, mission, objectives, or functions of the qualifying
institution, organization, or entity. Id.
The H-1B cap exemption regulations define ``nonprofit entity,''
``nonprofit research organization,'' and ``governmental research
organization'' at 8 CFR 214.2(h)(8)(iii)(F)(3). For the definition of
``nonprofit entity,'' the regulation adopts the definition at 8 CFR
214.2(h)(19)(iv).\59\ For the definition of ``nonprofit research
organization'' and ``governmental research organization,'' the
regulation adopts the definition at 8 CFR 214.2(h)(19)(iii)(C). The
regulation at 8 CFR 214.2(h)(19)(iii)(C) states that a nonprofit
research organization is ``primarily engaged in basic research and/or
applied research,'' while a governmental research organization is a
Federal, State, or local entity ``whose primary mission is the
performance or promotion of basic research and/or applied research.''
Id.
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\59\ 8 CFR 214.2(h)(19)(iii) and (iv) pertains to organizations
that are exempt from the ACWIA fee for H-1B petitions.
---------------------------------------------------------------------------
Specifically, DHS proposes to change the phrase ``the majority of''
at 8 CFR 214.2(h)(8)(iii)(F)(4) to ``at least half'' to clarify that H-
1B beneficiaries who are not directly employed by a qualifying
institution, organization, or entity identified in section 214(g)(5)(A)
or (B) of the Act, who equally split their work time between a cap-
exempt entity and a non-cap-exempt entity, may be eligible for cap
exemption. See proposed 8 CFR 214.2(h)(8)(iii)(F)(4). The purpose and
intended effect of the proposed change is to update the standard to
qualify for this cap exemption, as USCIS has historically interpreted
``the majority of'' as meaning more than half.\60\ For example, under
proposed 8 CFR 214.2(h)(8)(iii)(F)(4), a beneficiary who works at a
for-profit hospital and research center that would not otherwise be a
qualifying institution would qualify for this cap exemption if the
beneficiary will spend exactly 50 percent of their time performing job
duties at a qualifying research organization (and those job duties
would further an activity that supports or advances one of the
fundamental purposes, missions, objectives, or functions of the
qualifying research organization). Under the current regulations, the
same beneficiary would not qualify because 50 percent would not meet
the ``majority of'' standard. The application of 8 CFR
214.2(h)(8)(iii)(F)(4) to a beneficiary who is not directly employed by
a qualifying institution, organization, or entity identified in section
214(g)(5)(A) or (B) of the Act would remain unchanged.
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\60\ See USCIS, Adjudicator's Field Manual (AFM), Chapter
31.3(g)(13), ``Cap Exemptions Pursuant to 214(g)(5) of the Act,''
<a href="https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm31-external.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm31-external.pdf</a>, at 36 (providing an example of a qualifying
H-1B cap-exempt petition where the beneficiary ``will spend more
than half of her time'' working at the qualifying entity). While
USCIS retired the AFM in May 2020, this example nevertheless
illustrates the agency's historical interpretation since at least
June 2006, when chapter 31.3(g)(13) was added. See also USCIS,
Interoffice Memorandum HQPRD 70/23.12, ``Guidance Regarding
Eligibility for Exemption from the H-1B Cap Based on Sec. 103 of
the American Competitiveness in the Twenty-First Century Act of 2000
(AC21) (Pub. L. 106-313)'' (Jun. 6, 2006), <a href="https://www.uscis.gov/sites/default/files/document/memos/ac21c060606.pdf">https://www.uscis.gov/sites/default/files/document/memos/ac21c060606.pdf</a>.
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DHS also proposes to revise 8 CFR 214.2(h)(8)(iii)(F)(4) to remove
the requirement that a beneficiary's duties ``directly and
predominately further the essential purpose, mission, objectives or
functions'' of the qualifying institution, organization, or entity and
replace it with the requirement that the beneficiary's duties
``directly further an activity that supports or advances one of the
fundamental purposes, missions, objectives, or functions'' of the
qualifying institution, organization, or entity. See proposed 8 CFR
214.2(h)(8)(iii)(F)(4).\61\ This proposed change is intended to update
the availability of cap exemptions to include beneficiaries whose work
directly contributes to, but does not necessarily predominantly
further, the qualifying organization's fundamental purpose, mission,
objectives, or functions. Further, this proposed change, by revising
``the'' to ``an'', acknowledges that a qualifying organization may have
more than one fundamental purpose, mission, objective, or function, and
this fact should not preclude an H-1B beneficiary from being exempt
from the H-1B cap.
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\61\ Although DHS would replace the word ``essential'' with
``fundamental'' in proposed 8 CFR 214.2(h)(8)(iii)(F)(4), these two
words are synonymous for purposes of cap exemptions. DHS proposes to
use ``fundamental'' in proposed 8 CFR 214.2(h)(8)(iii)(F)(4) in
order to be consistent with current and proposed 8 CFR
214.2(h)(19)(iii).
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Proposed 8 CFR 214.2(h)(8)(iii)(F)(4) would also eliminate the
sentence stating that the H-1B petitioner has the burden to establish
that there is a nexus between the beneficiary's duties and the
essential purpose, mission, objectives or functions of the qualifying
institution, organization, or entity. Since the petitioner is already
required to establish that the beneficiary's duties further an activity
that supports one of the fundamental purposes, missions, objectives, or
functions of the qualifying entity, it is inherently required to show a
nexus between the duties and the entity's purpose, mission, objections,
or functions, and therefore, the ``nexus'' requirement is redundant.
These proposed changes to 8 CFR 214.2(h)(8)(iii)(F)(4) would provide
more clarity and flexibility for H-1B beneficiaries who will not be
directly employed by a qualifying institution, organization, or entity.
DHS also proposes to clarify that the requirement that the
beneficiary spend at least half of their work time performing job
duties ``at'' a qualifying institution should not be taken to mean the
duties need to be physically performed onsite at the qualifying
institution. DHS is aware that many positions can be performed
remotely. When considering whether such a position is cap-exempt, the
proper focus is on the job duties, rather than where the duties are
performed physically.
DHS also proposes to revise 8 CFR 214.2(h)(19)(iii)(C), which
states that a nonprofit research organization is an entity that is
``primarily engaged in basic research and/or applied research,'' and a
governmental research organization is a Federal, State, or local entity
``whose primary mission is the performance or promotion of basic
research and/or applied research.'' DHS proposes to replace ``primarily
engaged'' and ``primary mission'' with ``a fundamental activity of'' to
permit a nonprofit entity or governmental research organization that
conducts research as a fundamental activity, but is not primarily
engaged in research, or where research is not the primary mission, to
meet the definition of a nonprofit research entity or governmental
research organization. See proposed 8 CFR 214.2(h)(19)(iii)(C).
Reorienting the cap exemptions for nonprofit research organizations and
governmental research organizations to the ``fundamental activity''
construct would align these standards with the current ``fundamental
activity'' standard found for formal written affiliation agreements
under 8 CFR
[[Page 72885]]
214.2(h)(8)(iii)(F)(2)(iv) and (h)(19)(iii)(B)(4), and would bring more
clarity and predictability to decision-making, for both adjudicators
and the regulated community.
DHS acknowledges that the ``primarily'' and ``primary''
requirements at current 8 CFR 214.2(h)(19)(iii)(C) have been in effect
for over a decade for purposes of cap exemptions, and that DHS declined
to make the same changes it is currently proposing in response to
commenters' suggestions when codifying this regulation in 2016.\62\ At
that time, DHS stated ``that maintaining these longstanding
interpretations, which include the `primarily' and `primary'
requirements, will serve to protect the integrity of the cap and fee
exemptions as well as clarify for stakeholders and adjudicators what
must be proven to successfully receive such exemptions.'' \63\ However,
rather than providing clarity, the ``primarily'' and ``primary''
requirements have resulted in inconsistency and confusion surrounding
eligibility for such cap exemptions.\64\
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\62\ As DHS explained in the final rule, the ``primarily'' and
``primary'' requirements ``have been in place since 1998 with regard
to fee exemptions and have been in effect for more than a decade for
purposes of the cap exemptions.'' See ``Retention of EB-1, EB-2, and
EB-3 Immigrant Workers and Program Improvements Affecting High-
Skilled Nonimmigrant Workers,'' 81 FR 82398, 82446 (Nov. 18, 2016).
\63\ Id.
\64\ See, e.g., Open Society Inst. v. USCIS, 2021 WL 4243403, at
*1 (D.D.C. 2021) (``Open Society maintains that on over a dozen
prior occasions USCIS found that Open Society satisfied this
standard but that in 2020 the agency reversed course without
sufficient explanation or sound reason.'').
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In 2015, DHS proposed using the phrase ``primary purpose'' at 8 CFR
214.2(h)(8)(iii)(F)(2)(iv) and (h)(19)(iii)(B)(4) (addressing cap
exemption and ACWIA fee exemption, respectively, for a nonprofit entity
that is related to or affiliated with an institution of higher
education based on a formal written affiliation agreement).\65\ In the
2016 final rule, however, DHS explained that it was not pursuing the
proposed phrase ``primary purpose'' and instead chose to replace it
with ``fundamental activity'' at 8 CFR 214.2(h)(8)(iii)(F)(2)(iv) and
(h)(19)(iii)(B)(4) ``to avoid potential confusion'' and to make it
``clearer that nonprofit entities may qualify for the cap and fee
exemptions even if they are engaged in more than one fundamental
activity, any one of which may directly contribute to the research or
education mission of a qualifying college or university.'' \66\ Even
though DHS declined to concurrently change the ``primarily'' and
``primary'' language at current 8 CFR 214.2(h)(19)(iii)(C), DHS
acknowledges that the ``fundamental activity'' text in current 8 CFR
214.2(h)(8)(iii)(F)(2)(iv) and (h)(19)(iii)(B)(4) did enhance clarity
in the intended manner and believes that current 8 CFR
214.2(h)(19)(iii)(C) would similarly benefit from this proposed change.
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\65\ See ``Retention of EB-1, EB-2, and EB-3 Immigrant Workers
and Program Improvements Affecting High-Skilled Nonimmigrant
Workers,'' 80 FR 81900 (Dec. 31, 2015) (proposed rule).
\66\ See ``Retention of EB-1, EB-2, and EB-3 Immigrant Workers
and Program Improvements Affecting High-Skilled Nonimmigrant
Workers,'' 81 FR 82398, 82444 (Nov. 18, 2016).
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In addition, DHS believes that the proposed ``fundamental
activity'' standard would still protect the integrity of the cap. While
changing this terminology may somewhat expand who is eligible for the
cap exemption, it would still require that an employer demonstrate that
research is a ``fundamental activity,'' which is a meaningful limiting
standard. Not every activity an organization engages in would be
considered a ``fundamental activity.'' A fundamental activity would
still have to be an important and substantial activity, although it
need not be the organization's principal or foremost activity as
required under the current ``primary'' construct.\67\ Further, the
organization would still need to meet all the other requirements to
qualify as a nonprofit research organization or governmental research
organization, including engaging in qualifying research as defined in
proposed 8 CFR 214.2(h)(19)(iii)(C), and documenting its tax exempt
status pursuant to proposed 8 CFR 214.2(h)(19)(iv).
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\67\ See Open Society Inst. v. USCIS, 2021 WL 4243403, at *5
(D.D.C. 2021) (``the ordinary meaning of `primarily' as it is used
in 8 CFR 214.2(h)(19)(iii)(C) is `principally and as distinguished
from incidentally or secondarily.''').
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DHS believes that the ``primarily'' and ``primary'' requirements at
current 8 CFR 214.2(h)(19)(iii)(C) are too restrictive.\68\ As
explained above, the current ``primarily'' and ``primary'' construct
requires a petitioner to demonstrate that research is its principal
activity, i.e., that research is the main or primary activity.\69\ One
key difference between the current and proposed standard is that an
employer could have more than one ``fundamental activity,'' whereas the
``primary'' or ``primarily'' standard requires that research is the
employer's foremost and main activity. This proposed change
acknowledges the reality that nonprofit organizations may engage in
several important activities. The proposed change modernizes the
definition of ``nonprofit research organization'' and ``governmental
research organization'' to include entities that may assist with
aspects of research throughout the research cycle despite not being
primarily engaged in performing the research. For example, a nonprofit
organization with a mission to eradicate malaria that engages in
lobbying, public awareness, funding medical research, and performing
its own research on the efficacy of various preventative measures, may
qualify for H-1B cap exemption even if it was not primarily engaged in
research. In this example, the organization would still qualify for the
cap exemption if research were one of several ``fundamental
activities'' of the organization, as opposed to its primary mission.
Similarly, a governmental research organization that engages in
semiconductor manufacturing research and development could qualify for
H-1B cap exemption if research is a fundamental activity of the
organization. Under the proposed rule, the organization may be eligible
for cap exemptions if research is one of its fundamental activities as
opposed to its primary activity.
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\68\ Multiple comments leading to the 2016 final rule also
expressed concern that the ``primary purpose'' requirement was too
restrictive, although in the context of 8 CFR
214.2(h)(8)(ii)(F)(2)(iv) and (h)(19)(iii)(B)(4). 81 FR at 82403.
\69\ See Open Society Institute v. USCIS, 2021 WL 4243403, at
*4-5 (D.D.C. 2021) (The court examined AAO's analysis of the term
``primarily engaged'' and the AAO's conclusion that ``a nonprofit
organization is ``primarily engaged'' in research if, and only if,
it is ```directly and principally' engaged in research'': ``. . .
[While] [Open Society] is `focused on research--researching problems
in the world, researching possible solutions for those problems, and
researching how to implement those solutions,' the regulation at 8
CFR 214.2(h)(19)(iii)(C) defines a nonprofit research organization
as one that is `primarily engaged' in research, which we interpret
to mean directly and principally engaged in research. Based on the
totality of evidence in the record, and considering its research
activities in proportion to its other activities, we conclude that
the record does not demonstrate that [Open Society] is directly and
principally engaged in research. The research conducted by [Open
Society] is incidental, or, at best, secondary to its principal
activities: making grants to promote social, legal and economic
reforms.' '') (changes in original).
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DHS also proposes to revise 8 CFR 214.2(h)(19)(iii)(C) to state
that a ``nonprofit research organization or governmental research
organization may perform or promote more than one fundamental
activity.'' See proposed 8 CFR 214.2(h)(19)(iii)(C). This proposed
change would align with DHS's position that a nonprofit entity may
engage in more than one fundamental activity under current 8 CFR
[[Page 72886]]
214.2(h)(8)(iii)(F)(2)(iv),\70\ which DHS seeks to codify at proposed 8
CFR 214.2(h)(8)(iii)(F)(2)(iv) and (h)(19)(iii)(B)(4) as well. DHS
believes it should apply the same standard that an entity may engage in
more than one fundamental activity, regardless of whether that entity
is requesting cap exemption as an ``affiliated or related nonprofit
entity'' or a ``nonprofit research organization or governmental
research organization.''
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\70\ Id. at 82445 (``DHS emphasizes that a nonprofit entity may
meet this definition even if it is engaged in more than one
fundamental activity, so long as at least one of those fundamental
activities is to directly contribute to the research or education
mission of a qualifying college or university.'').
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Finally, DHS proposes to add language that both basic and applied
research may also include ``designing, analyzing, and directing the
research of others if on an ongoing basis and throughout the research
cycle.'' See proposed 8 CFR 214.2(h)(19)(iii)(C).
Taken together, these proposed changes clarify, simplify, and
modernize eligibility for cap-exempt H-1B employment.\71\ DHS's
proposed changes to 8 CFR 214.2(h)(8)(iii)(F)(4) and (h)(19)(iii)(C)
provide additional flexibility to exempt from the H-1B cap certain H-1B
beneficiaries who are employed at a qualifying institution,
organization, or entity. These changes are consistent with the language
of the statute at INA section 214(g)(5)(A) through (B) and would
further the INA's goals of improving economic growth and job creation
by facilitating U.S. employers' access to high-skilled workers,
particularly at these institutions, organizations, and entities.\72\
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\71\ These proposed changes would also impact eligibility for
exemption from the ACWIA fees applicable to initial cap-subject
petitions. The definitions of ``nonprofit research organization''
and ``governmental research organization'' at 8 CFR
214.2(h)(19)(iii)(C), and ``nonprofit entity'' at 8 CFR
214.2(h)(19)(iv), would continue to apply to which entities are
exempt from the H-1B- cap as well as which entities are exempt from
the additional ACWIA fee.
\72\ See S. Rep. No. 260, 106th Cong., 2nd Sess. (Apr. 11,
2000), at 10 (AC21 sought to help the American economy by, in part,
exempting from the H-1B cap ``visas obtained by universities,
research facilities, and those obtained on behalf of graduate degree
recipients to help keep top graduates and educators in the
country.'' See also ``Retention of EB-1, EB-2, and EB-3 Immigrant
Workers and Program Improvements Affecting High-Skilled Nonimmigrant
Workers,'' 81 FR 82398, 82447 (Nov. 18, 2016) (``DHS believes that
its policy extending the cap exemption to individuals employed `at'
and not simply employed `by' a qualifying institution, organization
or entity is consistent with the language of the statute and
furthers the goals of AC21 to improve economic growth and job
creation by immediately increasing U.S. access to high-skilled
workers, and particularly at these institutions, organizations, and
entities.'').
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DHS further proposes to amend the definition of ``nonprofit or tax
exempt organizations'' by eliminating 8 CFR 214.2(h)(19)(iv)(B), which
currently requires that the petitioner provide evidence that it ``[h]as
been approved as a tax exempt organization for research or educational
purposes by the Internal Revenue Service.'' In its experience, USCIS
has found that Internal Revenue Service (IRS) letters generally do not
identify the reasons why an entity received approval as a tax exempt
organization, so current 8 CFR 214.2(h)(19)(iv)(B) imposes an
evidentiary requirement that is unduly difficult to meet. Proposed 8
CFR 214.2(h)(19)(iv) would more simply state that a nonprofit
organization or entity ``must be determined by the Internal Revenue
Service as a tax exempt organization under the Internal Revenue Code of
1986, section 501(c)(3) (c)(4), or (c)(6), 26 U.S.C. 501(c)(3), (c)(4),
or (c)(6).'' While this change would remove the requirement that the
IRS letter itself state that the petitioner's approval as a tax exempt
organization was ``for research or educational purposes,'' DHS is not
proposing to eliminate or otherwise change the overarching requirement
that a qualifying nonprofit or tax exempt petitioner be an institution
of higher education or a related or affiliated nonprofit entity, or a
nonprofit research organization or a governmental research organization
institution, as required by the regulations and INA section 214(g)(5).
The petitioner would still need to submit documentation to demonstrate
that it meets such a requirement, except that the submitted
documentation would not need to be in the form of an IRS letter.
2. Automatic Extension of Authorized Employment Under 8 CFR
214.2(f)(5)(vi) (Cap-Gap)
DHS proposes to revise 8 CFR 214.2(f)(5)(vi) to provide an
automatic extension of duration of status and post-completion OPT or
24-month extension of post-completion OPT, as applicable, until April 1
of the relevant fiscal year for which the H-1B petition is requested.
See proposed 8 CFR 214.2(f)(5)(vi). Currently, the automatic extension
is valid only until October 1 of the fiscal year for which H-1B status
is being requested. This change would result in more flexibility for
both students and USCIS and would help to avoid disruption to U.S.
employers that are lawfully employing F-1 students while a qualifying
H-1B cap-subject petition is pending. As an added integrity measure,
DHS proposes to specify that the H-1B petition must be ``nonfrivolous''
in order for the student to benefit from the cap-gap extension. See
proposed 8 CFR 214.2(f)(5)(vi)(A)(3).
Each year, a number of U.S. employers seek to employ F-1 students
via the H-1B program by requesting a COS and filing an H-1B cap
petition with USCIS. Because petitioners may not file H-1B petitions
more than six months before the date of actual need for the
employee,\73\ the earliest date an H-1B cap-subject petition may be
filed for a given fiscal year is April 1, six months prior to the start
of the applicable fiscal year for which initial H-1B classification is
sought. Many F-1 students complete a program of study or post-
completion OPT in mid-spring or early summer. Per current regulations,
after completing their program or post-completion OPT, F-1 students
have 60 days to depart the United States or take other appropriate
steps to maintain a lawful status. See 8 CFR 214.2(f)(5)(iv). However,
because the change to H-1B status cannot occur earlier than October 1,
an F-1 student whose program or post-completion OPT expires in mid-
spring has two or more months following the 60-day period before the
authorized period of H-1B status can begin. To address this situation,
commonly known as the ``cap-gap,'' DHS established regulations that
automatically extended F-1 Duration of Status (D/S) and, if applicable,
post-completion OPT employment authorization to October 1 for eligible
F-1 students. See 8 CFR 214.2(f)(5)(vi). The extension of F-1 D/S and
OPT employment authorization is commonly known as the ``cap-gap
extension.''
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\73\ See 8 CFR 214.2(h)(2)(i)(I).
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DHS proposes to further extend F-1 status and post-completion OPT,
including STEM OPT, in this context.\74\ Under current regulations, the
automatic cap-gap extension is valid only until October 1 of the fiscal
year for which H-1B status is being requested. See 8 CFR
214.2(f)(5)(vi). When the October 1 extension was initially promulgated
through an interim final rule in 2008, DHS considered it an
administrative solution to bridge the gap between the end of the
academic year and the beginning of the fiscal year, when the student's
H-1B status typically would begin.\75\ When this
[[Page 72887]]
provision was finalized in 2016, DHS responded to commenters requesting
that DHS revise the cap-gap provision so as to automatically extend
status and employment authorization ``until adjudication of such H-1B
petition is complete.'' \76\ Commenters stated that an extension until
October 1 might have been appropriate in the past, when H-1B petitions
were adjudicated well before that date, but USCIS workload issues at
the time the rule was promulgated and the need to respond to RFEs
delayed such adjudications beyond October 1.\77\ DHS responded that it
recognized that some cap-subject H-1B petitions remain pending on or
after October 1 of the relevant fiscal year, but that USCIS prioritizes
petitions seeking a COS from F-1 to H-1B, which normally results in the
timely adjudication of these requests, so the vast majority of F-1
students changing status to H-1B do not experience any gap in
status.\78\ DHS also explained that it was concerned that extending
cap-gap employment authorization beyond October 1 would reward
potentially frivolous filings that would enable students who may
ultimately be found not to qualify for H-1B status to continue to
benefit from the cap-gap extension and that the October 1 cut-off
serves to prevent possible abuse of the cap-gap extension.\79\
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\74\ DHS previously proposed extending the cap-gap period, but
the proposed rule was never finalized and was subsequently
withdrawn. See ``Establishing a Fixed Time Period of Admission and
an Extension of Stay Procedure for Nonimmigrant Academic Students,
Exchange Visitors, and Representatives of Foreign Information
Media,'' 85 FR 60526 (Sept. 25, 2020) (withdrawn by 86 FR 35410
(July 6, 2021)).
\75\ See ``Extending Period of Optional Practical Training by 17
Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding
Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions,''
73 FR 18944 (Apr. 8, 2008).
\76\ See ``Improving and Expanding Training Opportunities for F-
1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All
Eligible F-1 Students,'' 81 FR 13039, 13100 (Mar. 11, 2016).
\77\ See 81 FR 13040, 13101 (Mar. 11, 2016).
\78\ Id.
\79\ Id.
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DHS has reconsidered its position in light of recent adjudication
delays and to avoid potential disruptions in employment authorization.
With the consistently high volume of cap-subject H-1B petitions filed
within a short period of time each year and the long timeframes
afforded to respond to RFEs, USCIS has, in some years, been unable to
complete the adjudication of all H-1B cap-subject petitions by October
1. This has resulted in situations where some individuals must stop
working on October 1 because the employment authorization provided
under 8 CFR 214.2(f)(5)(vi) ends on that date, although these
individuals generally have been allowed to remain in the United States
in an authorized period of stay while the H-1B petition and COS
application is pending.
To account for this operational issue, DHS is proposing to revise 8
CFR 214.2(f)(5)(vi) to provide an automatic extension of F-1 status and
post-completion OPT, or 24-month extension of post-completion OPT, as
applicable, until April 1 of the fiscal year for which the H-1B
petition is filed, or until the validity start date of the approved H-
1B petition, whichever is earlier. This provision would extend the
student's F-1 status and employment authorization, as applicable,
automatically if a nonfrivolous H-1B petition requesting a COS is
timely filed on behalf of the F-1 student. See proposed 8 CFR
214.2(f)(5)(vi)(A). However, if the F-1 student's COS request is still
pending at the end of the cap-gap period, then their employment
authorization would terminate on March 31, and the F-1 student would no
longer be authorized for employment on this basis as of April 1 of the
fiscal year for which H-1B classification is sought. If the H-1B
petition underlying the cap-gap extension is denied before April 1,
then, consistent with existing USCIS practice, the F-1 beneficiary of
the petition, as well as any F-2 dependents, would generally receive
the standard F-1 grace period of 60 days to depart the United States or
take other appropriate steps to maintain a lawful status.\80\ If the H-
1B petition is still pending on April 1, then the beneficiary of the
petition is no longer authorized for OPT and the 60-day grace period
begins on April 1. The F-1 beneficiary may not work during the 60-day
grace period.
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\80\ See 8 CFR 214.2(f)(5)(iv).
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Changing the automatic extension end date from October 1 to April 1
of the relevant fiscal year would prevent the disruptions in employment
authorization that some F-1 nonimmigrants seeking cap-gap extensions
have experienced over the past several years. DHS recognizes the
hardships that a disruption in employment authorization could cause to
both the affected individual and their employer and seeks to prevent
potential future disruptions by extending cap-gap relief. According to
USCIS data for FY 2016-22, USCIS has adjudicated approximately 99
percent of H-1B cap-subject petitions requesting a COS from F-1 to H-1B
by April 1 of the relevant fiscal year.\81\ As a result of this
proposed cap-gap extension, DHS expects USCIS would be able to
adjudicate nearly all H-1B cap-subject petitions requesting a COS from
F-1 to H-1B by the April 1 deadline.
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\81\ USCIS, OP&S Policy Research Division (PRD), Computer-Linked
Application Information Management System 3 (C3) database, Oct. 27,
2022. PRD187.
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In addition to avoiding employment disruptions, the lengthier
extension of F-1 status and post-completion OPT or 24-month extension
of post-completion OPT employment authorization for students with
pending H-1B petitions until April 1, which is one year from the
typical initial cap filing start date, accounts for USCIS' competing
operational considerations and would enable the agency to balance
workloads more appropriately for different types of petitions.
Although DHS previously expressed the concern that extending cap-
gap employment authorization could potentially enable students who
ultimately may be found not to qualify for H-1B status to continue to
benefit from the cap-gap extension,\82\ and thus encourage frivolous
filings, DHS has reconsidered its position. It is now DHS's position
that extending the cap-gap period would not significantly increase the
risk of frivolous filings. Because there is no way of knowing whether
USCIS would complete adjudication of a petition before October 1 or
April 1 of the fiscal year, there should be little incentive to submit
a frivolous filing solely to obtain the longer cap-gap extension
period. The H-1B petition would still have to be filed with all
appropriate fees, which can be substantial for an initial cap filing.
Moreover, if the petition is denied, the beneficiary's cap-gap
eligibility ends immediately. Accordingly, frivolous petitions or
petitions filed solely to obtain cap-gap protections would run the risk
of simply being denied prior to October 1. This would result in no
additional benefit from the expanded timeframe. Any risk of fraud is
already inherent in providing cap-gap relief itself, and DHS is unaware
of any additional risk presented by extending the cap-gap period. DHS
proposes to explicitly state that the H-1B petition must be
nonfrivolous at proposed 8 CFR 214.2(f)(5)(vi)(A)(3) to further deter
frivolous filings. This would bolster integrity because if USCIS
determines the filing to be frivolous, then the beneficiary would not
have qualified for the cap-gap protection and may be deemed to have
failed to maintain status and, if applicable, worked without
authorization. Given the importance of ensuring that the United States
attracts and retains top talent from around the globe, DHS believes
that the benefits of this proposed cap-gap extension far outweigh the
risk of abuse.
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\82\ See 81 FR 13039, 13101 (Mar. 11, 2016).
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3. Start Date Flexibility for Certain H-1B Cap-Subject Petitions
DHS proposes to eliminate all the text currently at 8 CFR
214.2(h)(8)(iii)(A)(4), which relates to a limitation on the
[[Page 72888]]
requested start date, because the current regulatory language is
ambiguous.\83\ DHS's proposal to eliminate the current language at 8
CFR 214.2(h)(8)(iii)(A)(4) would provide clarity and flexibility to
employers with regard to the start date listed on H-1B cap-subject
petitions. This proposal also would align the regulations related to H-
1B cap-subject petitions with current USCIS practice, which is to
permit a requested petition start date of October 1 or later, as long
as the requested petition start date does not exceed six months beyond
the filing date of the petition, even during the initial registration
period.\84\ Other restrictions on the petition start date would remain
in place, such as the requirement that a petition may not be filed
earlier than six months before the date of actual need. See 8 CFR
214.2(h)(2)(i)(I). Additionally, a petitioner may file an H-1B cap-
subject petition on behalf of a registered beneficiary for a particular
fiscal year only after the petitioner's registration for that
beneficiary has been selected for that fiscal year. See 8 CFR
214.2(h)(8)(iii)(A)(1).
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\83\ DHS is proposing new language at 8 CFR
214.2(h)(8)(iii)(A)(4) about selecting registrations based on unique
beneficiaries. DHS discusses this proposal in detail in the preamble
section describing the proposed changes to the H-1B registration
system.
\84\ See USCIS, ``H-1B Electronic Registration Process,''
<a href="https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process">https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process</a> (petitioners with a selected
registration ``must indicate a start date of Oct. 1 . . . . or
later'') (last visited Nov. 10, 2022).
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The current regulation at 8 CFR 214.2(h)(8)(iii)(A)(4) states, ``A
petitioner may submit a registration during the initial registration
period only if the requested start date for the beneficiary is the
first day for the applicable fiscal year.'' This language is ambiguous
as to whether the ``requested start date'' is the start date of the
registration or the petition. This has led to confusion as the H-1B cap
registration system currently does not ask for the requested start date
for the beneficiary. The start date would only be relevant upon the
filing of the petition, but the regulation refers to submitting ``a
registration with a requested start date.'' Further, current 8 CFR
214.2(h)(8)(iii)(A)(4) states that, ``If USCIS keeps the registration
period open beyond the initial registration period, or determines that
it is necessary to re-open the registration period, a petitioner may
submit a registration with a requested start date after the first
business day for the applicable fiscal year.'' Given the potential for
multiple registration periods, however, the current regulation is
potentially confusing regarding the intended start date and what start
date a petitioner is permitted to request on a cap-subject petition.
As stated above, DHS's proposal to eliminate the current language
at 8 CFR 214.2(h)(8)(iii)(A)(4) would provide clarity and flexibility
to employers. The need to eliminate potential confusion regarding
permissible requested start dates on cap-subject petitions emerged
during the FY 2021 registration and filing season, the first year of
the electronic registration process. The electronic registration period
for FY 2021 ran from March 1, 2020, to March 20, 2020. First, USCIS
selected registrations submitted on behalf of all beneficiaries,
including those eligible for the advanced degree exemption. USCIS then
selected from the remaining registrations a sufficient number projected
to reach the advanced degree exemption. The selection process was
completed on March 27, 2020, and USCIS began to notify employers of
selection results. The initial petition filing period began on April 1,
2020, and lasted 90 days. Due to multiple factors occurring during the
FY 2021 registration and initial filing period (most notably that it
was the first year that the electronic registration system was in place
as well as it being the early months of the COVID-19 pandemic with its
unforeseen consequences), USCIS received fewer petitions than projected
as needed to reach the numerical allocations under the statutory cap
and advanced degree exemption. In August 2020, USCIS selected
additional registrations and permitted those prospective petitioners
with a selected registration or registrations to file petitions before
November 16, 2020. Due to the additional selection period, the filing
window went beyond October 1, leading some petitioners to indicate a
start date after October 1, 2020.
Although USCIS permitted employers to file petitions after October
1, 2020, USCIS rejected or administratively closed many petitions that
did not list a start date of October 1, 2020, pursuant to current 8 CFR
214.2(h)(8)(iii)(A)(4). As a result, many petitioners had to backdate
the requested start date on the petition, even though the start date
listed on the petition consequently may have been before the start date
identified on the accompanying LCA. On June 23, 2021, USCIS announced
its reconsideration of those rejected or administratively closed
petitions.\85\ The agency announced that it would permit petitioners to
resubmit any FY 2021 H-1B cap-subject petitions that were rejected or
administratively closed solely because the petition requested a start
date after October 1, 2020.
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\85\ See USCIS, ``USCIS Will Allow Resubmission of Certain FY
2021 H-1B Petitions Rejected or Closed Due to Start Date,'' <a href="https://www.uscis.gov/news/alerts/uscis-will-allow-resubmission-of-certain-fy-2021-h-1b-petitions-rejected-or-closed-due-to-start-date">https://www.uscis.gov/news/alerts/uscis-will-allow-resubmission-of-certain-fy-2021-h-1b-petitions-rejected-or-closed-due-to-start-date</a> (last
visited Jan. 26, 2023).
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The proposed changes would eliminate the language at current 8 CFR
214.2(h)(8)(iii)(A)(4), which would clarify for petitioners that they
may file H-1B cap-subject petitions with requested start dates that are
after October 1 of the relevant fiscal year. This is consistent with
current USCIS policy and would eliminate the potential confusion
resulting from the current regulation with regard to permissible start
dates for employers submitting H-1B cap-subject petitions.\86\ While
the requested start date may be later than October 1, it must be six
months or less from the date the petition is filed.\87\ If the
requested start date is more than six months after the petition is
filed, the petition will be denied or rejected.\88\
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\86\ See USCIS, ``H-1B Electronic Registration Process'' (last
reviewed/updated Apr. 25, 2022), <a href="https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process">https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process</a> (Q4: ``If we
selected your registration, you must indicate a start date of Oct. 1
. . . or later.'').
\87\ See 8 CFR 214.2(h)(2)(i)(I).
\88\ See id.
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DHS's proposal to eliminate the current language at 8 CFR
214.2(h)(8)(iii)(A)(4) would not affect the requirement that an H--1B
cap-subject petition must be based on a valid registration for the same
beneficiary and the same fiscal year. This requirement is reflected in
existing USCIS guidance \89\ and the current regulation at 8 CFR
214.2(h)(8)(iii)(A)(1), which states that ``A petitioner may file an H-
1B cap-subject petition on behalf of a registered beneficiary only
after the petitioner's registration for that beneficiary has been
selected for that fiscal year.'' While DHS intends to remove this
particular sentence at proposed 8 CFR 214.2(h)(8)(iii)(A)(1) to reflect
changes resulting from the beneficiary-centric selection process, DHS
proposes to add the same requirement that the registration and petition
be for the same fiscal year by adding ``for the same fiscal
[[Page 72889]]
year'' to the immediately preceding sentence discussing the eligibility
requirements to file an H--1B cap-subject petition based on the
registration. Thus, proposed 8 CFR 214.2(h)(8)(iii)(A)(1) would state,
``To be eligible to file a petition for a beneficiary who may be
counted against the H-1B regular cap or the H-1B advanced degree
exemption for a particular fiscal year, a registration must be properly
submitted in accordance with 8 CFR 103.2(a)(1), paragraph (h)(8)(iii)
of this section, and the form instructions, for the same fiscal year.''
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\89\ See USCIS, ``H-1B Specialty Occupations, DOD Cooperative
Research and Development Project Workers, and Fashion Models,''
<a href="https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations">https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations</a> (``A cap-subject H-1B petition will not be considered to
be properly filed unless it is based on a valid, selected
registration for the same beneficiary and the appropriate fiscal
year''.).
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C. Program Integrity
1. The H-1B Registration System
Through issuance of a final rule in 2019, Registration Requirement
for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject
Aliens, DHS developed a new way to administer the H-1B cap selection
process to streamline processing and provide overall cost savings to
employers seeking to file H-1B cap-subject petitions.\90\ In 2020,
USCIS implemented the first electronic registration process for the FY
2021 H-1B cap. In that year, prospective petitioners seeking to file H-
1B cap-subject petitions (including for beneficiaries eligible for the
advanced degree exemption) were required to first electronically
register and pay the associated H-1B registration fee for each
prospective beneficiary.
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\90\ See ``Registration Requirement for Petitioners Seeking To
File H-1B Petitions on Behalf of Cap-Subject Aliens,'' 84 FR 888
(Jan. 31, 2019).
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Under this process, prospective petitioners (also known as
registrants) that seek to employ H-1B cap-subject workers must complete
a registration process that requires only basic information about the
prospective petitioner and each requested worker. The H-1B selection
process is then run on properly submitted electronic registrations.
Only those with valid selected registrations are eligible to file H-1B
cap-subject petitions.
Per regulation, USCIS takes into account historical data related to
approvals, denials, revocations, and other relevant factors to
calculate the number of petitions needed to meet the H-1B cap for a
given fiscal year.\91\ In making this calculation, USCIS considers the
number of registrations that need to be selected to receive the
projected number of petitions required to meet the numerical
limitations.
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\91\ See 8 CFR 214.2(h)(8)(iii)(E).
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As stated in the proposed rule for the registration requirement,
DHS proposed this new process, ``to reduce costs for petitioners who
currently spend significant time and resources preparing petitions and
supporting documentation for each intended beneficiary without knowing
whether such petitions will be accepted for processing by USCIS due to
the statutory allocations.'' \92\ DHS also explained that the
registration process, ``would help to alleviate administrative burdens
on USCIS service centers that process H-1B petitions since USCIS would
no longer need to physically receive and handle hundreds of thousands
of H-1B petitions (and the accompanying supporting documentation)
before conducting the random selection process.'' \93\ Several
stakeholders commented favorably on this proposal, noting that the
registration requirement would ``reduce waste and increase
efficiency,'' as well as ``relieve uncertainty for employers and
employees, and mitigate burdens on USCIS.'' \94\ The H-1B electronic
registration process continues to be well-received by users, who
provided a high satisfaction score with the system for FY 2023 (4.84
out of 5) \95\ and FY 2022 (4.87 out of 5).\96\
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\92\ See ``Registration Requirement for Petitioners Seeking To
File H-1B Petitions on Behalf of Cap-Subject Aliens,'' 83 FR 62406,
62407 (Dec. 3, 2018).
\93\ Id. at 62407-08.
\94\ See ``Registration Requirement for Petitioners Seeking To
File H-1B Petitions on Behalf of Cap-Subject Aliens,'' 84 FR 888,
897 (Jan. 31, 2019).
\95\ See USCIS, ``H-1B Electronic Registration Process'' (last
updated Apr. 25, 2022), <a href="https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process">https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process</a>.
\96\ See American Immigration Lawyers Association, ``USCIS
Provides FY2022 H-1B Cap Registration Process Update,'' <a href="https://www.aila.org/infonet/fy2022-h-1b-cap-registration-process-update">https://www.aila.org/infonet/fy2022-h-1b-cap-registration-process-update</a>.
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As DHS noted in the final rule implementing the registration
system, USCIS has authority to collect sufficient information for each
registration to mitigate the risk that the registration system will be
flooded with frivolous registrations.\97\ For example, USCIS requires
each registrant to complete an attestation and noted in the final rule
that ``individuals or entities who falsely attest to the bona fides of
the registration and submitted frivolous registrations may be referred
to appropriate Federal law enforcement agencies for investigation and
further action as appropriate.'' \98\ DHS revised this attestation
prior to the FY 2023 cap season, by adding a certification (to which
the registrant must attest before submission) that the registration
reflects a legitimate job offer, and that the registrant has ``not
worked with, or agreed to work with, another registrant, petitioner,
agent, or other individual or entity to submit a registration to
unfairly increase chances of selection for the beneficiary or
beneficiaries in this submission.'' \99\ DHS continues to take steps
against potential abuse and is in the process of investigating
potential malfeasance and possible referrals to law enforcement
agencies. However, the time needed to pursue potential bad actors
supports an alternative solution. As a result, DHS has determined that
a more effective way to ensure that the registration system continues
to serve its purpose of fair and orderly administration of the annual
H-1B numerical allocations would be to structurally limit the potential
for bad actors to game the system by changing the selection process so
that it selects by unique beneficiary rather than by registration.
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\97\ See ``Registration Requirement for Petitioners Seeking To
File H-1B Petitions on Behalf of Cap-Subject Aliens,'' 84 FR 888,
900, 904 (Jan. 31, 2019).
\98\ See id. at 900.
\99\ See Office of Management and Budget (OMB) Control Number
1615-0144, Information Collection Request Reference Number 202202-
1615-005, supplementary document ``H-1B Registration Tool Copy
Deck,'' <a href="https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=202202-1615-005">https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=202202-1615-005</a> (received by OMB's Office of
Information and Regulatory Affairs (OIRA) Feb. 28, 2022, and
approved without change Aug. 8, 2022).
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As detailed in the table below, DHS has seen an increase in the
number of beneficiaries with multiple registrations submitted on their
behalf, an increase in the number and percentage of registrations
submitted for beneficiaries with multiple registrations, an increase in
the number of beneficiaries having five or more registrations submitted
on their behalf, and a substantial increase in the total number of
registrations submitted for a unique individual.
BILLING CODE 9111-97-P
[[Page 72890]]
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While DHS recognizes that simply being the beneficiary of multiple
registrations is not necessarily indicative of fraud or misuse, as
beneficiaries may legitimately have multiple job offers by different
employers that are not working together to game the system, it is still
worth noting the significant increase in individuals with multiple
registrations for FY22 and FY23. For instance, while DHS is aware that
multiple petitioners may submit registrations for a highly qualified
beneficiary, it raises red flags if one beneficiary has 41 or 83
registrations submitted on their behalf, which occurred in FY22 and
FY23, respectively.
Under current regulations, there is no limit on the number of
registrations that may be submitted on behalf of one unique individual
by different registrants. DHS is not proposing to limit the number of
registrations that may be submitted on behalf of a unique individual by
different registrants, provided that the registrants are not working
with (or have not agreed to work with) another registrant, petitioner,
agent, or other individual or entity to submit a registration to
unfairly increase the chances of selection for a beneficiary. However,
the data show that multiple registrations on behalf of the same
individual are increasing. DHS is concerned that this increase in
multiple registrations may indicate strategic behavior by registrants
(and beneficiaries working with registrants) to submit increasing
numbers of registrations, which may be frivolous, to greatly increase a
beneficiary's chance of selection. This negatively affects the
integrity of the registration system and selection process.
DHS is concerned that individuals with large numbers of
registrations submitted on their behalf are potentially misusing the
registration system to increase their chances of selection and that the
registrations submitted may not represent legitimate job offers. The
possible effect of this increase in multiple registrations, which
potentially do not represent legitimate job offers, is to skew the
selection process. Beneficiaries who have multiple registrations
submitted on their behalf have a significantly higher chance of
selection. At the same time, an individual's chance of selection with a
single registration is greatly reduced, as the number of beneficiaries
with multiple registrations increases.
[[Page 72891]]
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[[Page 72892]]
[GRAPHIC] [TIFF OMITTED] TP23OC23.009
[[Page 72893]]
[GRAPHIC] [TIFF OMITTED] TP23OC23.010
Registration data also show patterns of groups of companies
submitting registrations for the same groups of beneficiaries. When
selected, these companies then go on to file a minimal number of
petitions compared to the number of registrations they submitted for
those beneficiaries. The following tables exemplify how one group of
companies has submitted large numbers of registrations for a smaller
number of common beneficiaries over three fiscal years, with the vast
majority of their total registrations made up of beneficiaries for whom
other companies in the group also submitted registrations.
[[Page 72894]]
[GRAPHIC] [TIFF OMITTED] TP23OC23.011
[[Page 72895]]
[GRAPHIC] [TIFF OMITTED] TP23OC23.012
[[Page 72896]]
[GRAPHIC] [TIFF OMITTED] TP23OC23.013
The degree of duplication between the companies raises concern that
the companies are working with each other to increase their chances of
selection. This coupled with the fact that the companies routinely have
over 150 registrations selected each year, but only file between 1 and
19 petitions, suggests that the registrations submitted by the
companies for the duplicate beneficiaries may not have represented
legitimate, bona fide offers of employment. This practice creates a
disadvantage for companies that are adhering to the requirements of the
registration and selection process.
Although there may have been legitimate reasons why a company did
not file a petition for a beneficiary whose registration was selected,
the non-filing rates for beneficiaries with multiple registrations is
significantly higher than that of beneficiaries with single
registrations. The non-filing rates for beneficiaries with multiple
registrations raises the question of whether these companies actually
intended to file an H-1B petition on behalf of the beneficiary when
they submitted their registrations and did not work with others to
unfairly improve their chance of selection, as they attested to on the
Registration Tool when each registration was submitted.
[[Page 72897]]
[GRAPHIC] [TIFF OMITTED] TP23OC23.014
BILLING CODE 9111-97-C
The registration data also show that the companies with the highest
rates of non-filing submitted a high percentage of registrations for
beneficiaries with multiple registrations. In FY23, 97 companies with
10 or more selections had a non-filing rate of 90 percent or greater.
Of those 97, the average rate of common beneficiaries among them was
90.72 percent. Eighteen of the 97 companies had a common beneficiary
rate of 100 percent. Amongst these 97 companies, the average number of
registrations per beneficiary was 8.03. In contrast, the companies with
10 or more selections and a non-filing rate of 10 percent or less, of
which there were 667, had an average rate of common beneficiaries of
8.01 percent and submitted registrations for beneficiaries who had an
average of 1.40 registrations per beneficiary.
Stakeholders have also identified opportunities for improving the
registration system in response to a DHS Request for Public Input.\100\
For instance, several commenters suggested running the selection
process based on unique beneficiaries instead of registrations to give
all beneficiaries an equal playing field, which is what DHS is
proposing with the beneficiary-centric option described below.
Commenters also made general suggestions to strengthen the consequences
of submitting frivolous registrations, which DHS agrees with and has
expanded upon in its proposals.
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\100\ See ``Identifying Barriers Across U.S. Citizenship and
Immigration Services (USCIS) Benefits and Services; Request for
Public Input,'' 86 FR 20398 (Apr. 19, 2021).
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DHS has a strong interest in ensuring that the annual numerical
allocations are going to petitioners that truly intend to employ an H-
1B worker, rather than prospective petitioners using the registration
system as a relatively cheap placeholder for the possibility that they
may want to employ an H-1B worker or as a way to game the selection
process. The current registration and selection process would benefit
from additional guardrails to better ensure the fair allocation of the
limited H-1B cap numbers to employers and individuals that are
complying with the regulations and have bona fide, legitimate
employment in which they intend to employ qualified beneficiaries.
Accordingly, this rule proposes to further limit the potential for
abuse of the registration process in three ways.\101\
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\101\ In U.S. Citizenship and Immigration Services Fee Schedule
and Changes to Certain Other Immigration Benefit Request
Requirements, 88 FR 402, 527 (Jan. 4, 2023) (proposed rule), DHS
proposed to increase the H-1B registration fee from $10 to $215 per
registration submitted. While the underlying purpose of the proposed
fee increase is to ensure full cost recovery for USCIS adjudication
and naturalization services, DHS recognizes the possibility that the
increase in the H-1B registration fee may have an impact on the
number of H-1B registrations submitted, including those submitted to
improperly increase the chance of selection. However, any potential
impact of that separate regulatory proposal is purely speculative.
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First, if USCIS determines that a random selection process should
be conducted, DHS proposes to shift from selecting by registration, to
selecting by unique beneficiary. Under the new proposal, each unique
individual who has a registration submitted on their behalf would be
entered into the selection process once, regardless of the number of
registrations filed on their behalf. By selecting by a unique
beneficiary, DHS would better ensure that each individual has the same
chance of being selected, regardless of how many registrations were
submitted on their behalf.
Second, DHS proposes to extend the existing prohibition on related
entities filing multiple petitions \102\ by also prohibiting related
entities from submitting multiple registrations for the same
individual. Prohibiting related employers from submitting multiple
registrations, absent a legitimate business need, would prevent
employers from submitting registrations when they would not in fact be
eligible to file a petition based on that registration, if selected.
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\102\ See 8 CFR 214.2(h)(2)(i)(G).
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Third, DHS proposes to codify USCIS's ability to deny an H-1B
petition or revoke an H-1B petition's approval when the petition is
based on a registration where the statement of facts (including the
attestations) was not true and correct, inaccurate, fraudulent, or
misrepresented a material fact.
2. Beneficiary Centric Selection
Under the proposed update to the random selection process,
registrants
[[Page 72898]]
would continue to submit registrations on behalf of beneficiaries and
beneficiaries would continue to be able to have more than one
registration submitted on their behalf, as allowed by applicable
regulations. If a random selection were necessary, then the selection
would be based on each unique beneficiary identified in the
registration pool, rather than each registration. Each unique
beneficiary would be entered in the selection process once, regardless
of how many registrations were submitted on their behalf. If a
beneficiary were selected, each registrant that submitted a
registration on that beneficiary's behalf would be notified of
selection and would be eligible to file a petition on that
beneficiary's behalf. See proposed 8 CFR 214.2(h)(8)(iii)(A)(1) and
(4). Changing how USCIS conducts the selection process to select by
unique beneficiaries instead of registrations would significantly
reduce or eliminate the advantage of submitting multiple registrations
for the same beneficiary solely to increase the chances of selection
and should give all beneficiaries an equal chance at selection. It
could also result in other benefits, such as giving beneficiaries
greater autonomy regarding their H-1B employment and improving the
chances of selection for legitimate registrations.
To ensure that USCIS can accurately identify each potential
beneficiary, registrants will continue to be required to submit
identifying information about the beneficiaries as part of the
registration process. Currently, each registration includes, in
addition to other basic information, fields for the registrant to
provide the beneficiary's full name, date of birth, country of birth,
country of citizenship, gender, and passport number if the beneficiary
has a passport. Although the Registration Final Rule said the passport
number would be required and it is requested during registration,
registrants have been able to effectively bypass the passport
requirement by affirmatively indicating that the beneficiary does not
have a passport.\103\
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\103\ In response to a comment in the final rule, DHS responded,
``This final rule requires that each registration include, in
addition to other basic information, the beneficiary's full name,
date of birth, country of birth, country of citizenship, gender, and
passport number.'' ``Registration Requirement for Petitioners
Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens,'' 84
FR 888, 900 (Jan. 31, 2019).
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Because the integrity of the new selection process would rely on
USCIS's ability to accurately identify each individual beneficiary, DHS
proposes to require the submission of valid passport information,
including the passport number, country of issuance, and expiration
date, in addition to the currently required information. See proposed 8
CFR 214.2(h)(8)(iii)(A)(4)(ii). Registrants would no longer be allowed
to select an option indicating that the beneficiary does not have a
passport. Combined with the other collected biographical information,
the passport number would allow USCIS to identify unique individuals
more reliably, increasing the likelihood that each individual would
have the same opportunity to be selected, if random selection were
required. Beneficiaries would be required to supply the same
identifying information and passport information to all registrants
submitting registrations on their behalf. Each beneficiary would only
be able to be registered under one passport, and the registrant would
be required to submit the information from the valid passport that the
beneficiary intends to use for travel to the United States if issued an
H-1B visa. If the beneficiary were already in the United States and
were seeking a COS, the registrant would be required to list a valid
passport. See proposed 8 CFR 214.2(h)(8)(iii)(A)(4)(ii). Even if a
beneficiary had more than one valid passport, such as a beneficiary
with dual citizenship, a beneficiary would only be able to be
registered under one of those passports. If USCIS determined that
registrations were submitted by either the same or different
prospective petitioners for the same beneficiary, but using different
identifying information, USCIS could find all of those registrations
invalid and could deny or revoke the approval of any petition filed
based on those registrations. See proposed 8 CFR
214.2(h)(8)(iii)(A)(2). Petitioners would be given notice and the
opportunity to respond before USCIS denied or revoked the approval of a
petition. Petitioners would be asked to explain and document the
identifying information used in the registration process. Petitioners
would be encouraged to retain documentation provided by the beneficiary
prior to registration, including a copy of the passport.
Any H-1B cap-subject petition must contain and be supported by the
same identifying information about the beneficiary as provided in the
selected registration for the beneficiary named in the petition, and
DHS proposes to require that petitioners submit evidence of the
passport used at the time of registration to identify the beneficiary.
See proposed 8 CFR 214.2(h)(8)(iii)(D)(1). USCIS could deny or revoke
the approval of an H-1B petition that does not meet this proposed
requirement. USCIS would typically afford the petitioner the
opportunity to respond when identifying information provided on the
registration does not match the information provided on the petition,
and petitioners would need to be prepared to explain and document the
reason for any change in identifying information. In its discretion,
USCIS could find that a change in identifying information is
permissible. Such circumstances could include, but would not be limited
to, a legal name change due to marriage, change in gender identity, or
a change in passport number or expiration date due to passport renewal,
or replacement of a stolen passport, in between the time of
registration and filing the petition. See proposed 8 CFR
214.2(h)(8)(iii)(D)(1).
DHS recognizes that some individuals may not possess a valid
passport, and therefore the proposed passport requirement would require
these individuals to obtain a valid passport, at some cost, by the time
of registration or even preclude individuals from being registered if
they were unable to obtain a valid passport by the time of
registration. However, DHS has a strong interest in requiring passport
information for each beneficiary, regardless of nationality, to better
identify unique beneficiaries and enhance the integrity of the H-1B
registration system. Further, DHS believes that requiring passport
information is reasonable because each registration should represent a
legitimate job offer. Except in limited situations where the Department
of State issued a beneficiary a visa on Form DS-232, Unrecognized
Passport or Waiver Cases, in the absence of a passport, it is not clear
how most beneficiaries could enter the United States in H-1B status
pursuant to that job offer. Therefore, the proposed rule, if finalized,
would only accelerate the time by which the beneficiary needed to
obtain a passport if the beneficiary did not already have a passport.
DHS recognizes that stateless individuals may be unable to obtain a
valid passport and that this passport requirement could preclude some
stateless individuals from being registered. DHS considered proposing
an exception to the passport requirement limited solely to stateless
individuals, but providing an exception would leave open the risk of
registrants submitting a registration for an individual claiming to be
stateless and having no passport number and submitting another
registration for the
[[Page 72899]]
same individual while listing a passport number. At the registration
stage, USCIS would not be able to determine whether those two
individuals are the same person or whether the individual is truly
stateless. Such a determination would require an adjudication of the
claim of statelessness, but USCIS does not adjudicate the registration.
Submission of the registration is merely an antecedent procedural
requirement to file the petition properly and is not intended to
replace the petition adjudication process or assess the eligibility of
the beneficiary for the offered position.\104\ DHS also considered the
possibility of generating a unique identifier for stateless
individuals, so that registrants could use this number in place of the
valid passport number on the registration, but believed this option
would run into the same problems of USCIS not being able to verify a
claim of statelessness at the registration stage.
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\104\ See ``Registration Requirement for Petitioners Seeking To
File H-1B Petitions on Behalf of Cap-Subject Aliens,'' 84 FR 888,
900 (Jan. 31, 2019).
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Furthermore, DHS considered available data for individuals issued
H-1B visas or otherwise granted H-1B status from FYs 2010-23. While the
data are imperfect, the data nevertheless suggest that the proposed
passport requirement would likely impact a small population of
stateless individuals. For instance, available data for FYs 2022 and
2023 show that USCIS received H-1B petitions for nine and four
individuals, out of a total of 370,110 and 94,649 H-1B petitions,
respectively, whose country of citizenship were listed as
``stateless.'' \105\ This represents just 0.0024 percent and 0.0042
percent, respectively, of all H-1B petitions received those fiscal
years. These data do not show whether the stateless individuals had a
valid passport upon their admission into the United States in H-1B
status; these data also do not show whether any of the four individuals
for FY 2023 were the same as some of the nine individuals reported for
FY 2022. Further, the DOS data show that, between FYs 2010-22, a total
of 89 H-1B visas out of a total of 1,988,856 H-1B visas were issued to
individuals whose nationalities were listed as ``no nationality.''
\106\ This total represents just 0.0045 percent of all H-1B visas
issued during those years. These data do not show how many of the 89
total H-1B visas were issued to unique individuals, as individuals
could have been issued more than one visa during this twelve-year
timeframe. Again, while acknowledging that the above data are
imperfect, DHS recognizes that not providing an exception or
alternative to the passport requirement would potentially impact
stateless individuals who might be approved for H-1B visas but would be
ineligible because they are unable to obtain a passport. DHS continues
to consider options and alternatives to the passport requirement for
stateless individuals and welcomes public comment on this issue as well
as the costs and benefits for both petitioners and beneficiaries of
requiring a passport number at registration.
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\105\ See USCIS, OP&S Policy Research Division (PRD), I-129--H-
1B Petitions reported with Stateless Country of Citizenship, ELIS
Petitions FYs 2020-23, PRD 252. The reported numbers do not include
beneficiaries whose country of citizenship information was missing,
blank, or unknown. The reported numbers for FY 2020 and FY 2021 were
both zero, as USCIS was not using ELIS at that time.
\106\ DOS, ``Visa Statistics,'' <a href="https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics.html">https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics.html</a> (last visited
Mar. 16, 2023).
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As discussed above, conducting the registration selection process
based on unique beneficiaries would significantly reduce or remove the
advantage of submitting multiple registrations solely to increase the
chances of selection and better allow for an equal playing field for
both employers and beneficiaries, while continuing to allow
beneficiaries to have multiple job offers and multiple registrations.
This would significantly reduce or remove an incentive for employers
and individuals to pursue registration without the existence of a bona
fide job offer and an intent to employ the individual for each
registration.
The proposed change would potentially benefit beneficiaries by
giving them greater autonomy to choose the employer for whom they
ultimately work. If multiple unrelated companies submitted
registrations for a beneficiary and the beneficiary were selected, then
the beneficiary could have greater bargaining power or flexibility to
determine which company or companies could submit an H-1B petition for
the beneficiary, because all of the companies that submitted a
registration for that unique beneficiary would be notified that their
registration was selected and they are eligible to file a petition on
behalf of that beneficiary. Under the current selection process,
however, the beneficiary could only be petitioned for by the specific
company that submitted the selected registration. While another company
could subsequently file a petition for concurrent employment, the
beneficiary would still have to be initially employed in H-1B status by
the same company that filed the initial cap-subject petition based on
the selected registration.
The proposed change may also potentially benefit companies that
submit legitimate registrations for unique beneficiaries by increasing
their chances to employ a specific beneficiary in H-1B status. Again,
under the current selection process, a company could file a petition
for and employ a beneficiary in H-1B status only if their registration
for that specific beneficiary was selected. Under the proposed
beneficiary-centric selection process, any company that submitted a
registration for a selected beneficiary could file a petition for and
potentially employ a beneficiary in H-1B status because all of the
prospective petitioners that submitted a registration for that selected
beneficiary would receive a selection notice. As previously discussed,
the data show that the current system may result in an unfair advantage
of selection for registrations potentially involving prospective
petitioners that worked together to submit multiple registrations for
the same beneficiary to unfairly improve their chance of selection. The
beneficiary-centric process is intended to correct this and level the
playing field for companies submitting legitimate registrations for
unique beneficiaries and not attempting to unfairly improve their
chance of selection.
DHS is also proposing minor changes to 8 CFR 214.2(h)(8)(iii)(A)(5)
through (7) and (h)(8)(iii)(E) to conform the regulatory text to the
proposed new selection process and clarify that USCIS would select
``beneficiaries'' rather than ``registrations.''
DHS expects USCIS to have sufficient time to develop, thoroughly
test, and implement the modifications to the registration system and
selection process and give stakeholders sufficient time to adjust to
these new procedures by the time the rule finalizing this proposed rule
would publish and become effective. USCIS has already begun planning
the development work of the new selection process in the electronic H-
1B registration tool. As indicated before, DHS may move to finalize
certain provisions through one or more final rules after carefully
considering all public comments and may possibly do so in time for the
FY 2025 cap season, depending on agency resources. In particular, DHS
may seek to finalize the provisions relating to the beneficiary centric
registration selection process in proposed 8 CFR 214.2(h)(8)(iii)(A)(4)
before moving to finalize the other proposed provisions in a separate
rule.
However, DHS and USCIS cannot predict, with certainty, agency
resources for the next few years or even when the
[[Page 72900]]
final rule would publish. Therefore, there is also the possibility that
DHS would need to delay the effective date of 8 CFR
214.2(h)(8)(iii)(A)(4). This delayed effective date might only apply to
the proposed changes describing the beneficiary-centric selection
process and, in that case, would not impact any other provisions in
this proposed rule, if finalized.
DHS may need to delay the effective date if it determines that
USCIS does not have sufficient time to ensure proper functionality of
the beneficiary-centric selection process, including completing all
requisite user testing. DHS may need to delay the effective date for
other reasons as well, such as to avoid the confusion that could result
if the final rule took effect too close to the start of the initial
registration period for the upcoming cap season, or to avoid disparate
treatment of registrations if the final rule took effect in the middle
of the initial registration period, or during a subsequent registration
and selection period, particularly if USCIS needed to open a subsequent
registration period later that year. In the event DHS needed to further
delay the effective date of these provisions beyond the effective date
of the final rule, DHS would publish a Federal Register Notice advising
the regulated public of the new delayed effective date. That Federal
Register Notice would be published at least 30 calendar days in advance
of the first date of the initial registration period.
3. Bar on Multiple Registrations Submitted by Related Entities
DHS regulations already preclude the filing of multiple H-1B cap-
subject petitions by related entities for the same beneficiary, unless
the related petitioners can establish a legitimate business need for
filing multiple cap-subject petitions for the same beneficiary. See 8
CFR 214.2(h)(2)(i)(G). DHS is not proposing to change that, but,
rather, is proposing to extend a similar limitation to the submission
of registrations. See proposed 8 CFR 214.2(h)(2)(i)(G). When an
employer submits a registration, they attest on the H-1B Registration
Tool that they intend to file a petition based on that registration. If
two related employers submit registrations for a cap-subject petition
for the same beneficiary, without a legitimate business need, both
employers are attesting to their intent to file a petition for that
beneficiary. If they are both selected, and they lack a legitimate
business need, they are left with one of two choices: (1) both file
petitions in violation of 8 CFR 214.2(h)(2)(i)(G); or (2) do not file
and potentially violate the attestation made at the time of
registration. Therefore, employers are left with two bad options. To
allow related employers to submit registrations, but not allow them to
file petitions, creates an inconsistency between the antecedent
procedural step of registration and the petition filing. Extending the
bar on multiple petition filings by related entities to multiple
registration submissions by related entities for the same cap-subject
beneficiary would harmonize the expectations for petition filing and
registration submission.
While DHS anticipates that changing the way beneficiaries are
selected would reduce frivolous registrations and their negative
effects, DHS cannot guarantee with certainty that this change would
completely eliminate entities from working with each other to submit
registrations to unfairly increase chances of selection for a
beneficiary by submitting slightly different identifying information or
other means that DHS cannot a
[…truncated; see source link]Indexed from Federal Register on October 23, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.