Rule2024-29354
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
December 18, 2024
Effective
January 17, 2025
Issuing agencies
Homeland Security Department
Abstract
The U.S. Department of Homeland Security (DHS) is issuing this final rule to modernize and improve the efficiency of the H-1B program, add benefits and flexibilities, and improve integrity measures. These provisions mainly amend the regulations governing H-1B specialty occupation workers, although some of the provisions narrowly impact other nonimmigrant classifications, including: H-2, H-3, F-1, L-1, O, P, Q-1, R-1, E-3, and TN.
Full Text
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[Federal Register Volume 89, Number 243 (Wednesday, December 18, 2024)]
[Rules and Regulations]
[Pages 103054-103200]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-29354]
[[Page 103053]]
Vol. 89
Wednesday,
No. 243
December 18, 2024
Part II
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;
Final Rule
Federal Register / Vol. 89 , No. 243 / Wednesday, December 18, 2024 /
Rules and Regulations
[[Page 103054]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 214
[CIS No. 2766-24; 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, Department of
Homeland Security (DHS).
ACTION: Final rule.
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SUMMARY: The U.S. Department of Homeland Security (DHS) is issuing this
final rule to modernize and improve the efficiency of the H-1B program,
add benefits and flexibilities, and improve integrity measures. These
provisions mainly amend the regulations governing H-1B specialty
occupation workers, although some of the provisions narrowly impact
other nonimmigrant classifications, including: H-2, H-3, F-1, L-1, O,
P, Q-1, R-1, E-3, and TN.
DATES: This final rule is effective January 17, 2025.
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. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of the Major Provisions of the Regulatory Action
1. Clarifying Requirements and Improving Program Efficiencies
2. Providing Greater Benefits and Flexibilities
3. Strengthening Program Integrity
C. Summary of Costs and Benefits
D. Summary of Changes from the Notice of Proposed Rulemaking
1. Specialty Occupation Definition and Criteria
2. Bar on Multiple Registrations Submitted by Related Entities
3. Contracts
4. Non-speculative or Bona Fide Employment
5. Beneficiary-Owners
6. Additional Changes
II. Background
A. Legal Authority
B. The H-1B Program
C. The F-1 Program
D. NPRM and Final Rules
III. Response to Public Comments on the Proposed Rule
A. Summary of Public Comments on the Proposed Rule
B. DHS/USCIS Statutory and Legal Issues
C. General Comments
1. General Support for the Rule
2. General Opposition to the Rule
3. Other General Comments on the Rule
D. Modernization and Efficiencies
1. General Comments on the Proposed Modernization and
Efficiencies Provisions
2. Specialty Occupation Definition and Criteria
i. General comments on the proposed changes to ``specialty
occupation''
ii. Amending the Definition of ``Specialty Occupation''
iii. Amending the Criteria for ``Specialty Occupation''
3. Amended Petitions
4. Deference
5. Evidence of Maintenance of Status
6. Eliminating the Itinerary Requirement for H programs
7. Validity Expires Before Adjudication
E. 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. Other Comments on Benefits and Flexibilities
F. Program Integrity
1. Provisions to Ensure Bona Fide Job Offer for a Bona Fide
Specialty Occupation Position
i. Contracts
ii. Bona Fide Employment
iii. LCA Properly Corresponds with the Petition
iv. Revising the Definition of U.S. Employer
v. Employer-Employee Relationship
vi. Bona Fide Job Offer
vii. Legal Presence and Amenable to Service of Process
2. Beneficiary-Owners
3. Site Visits
4. Third-Party Placement (Codifying Policy Based on Defensor v.
Meissner (5th Cir. 2000))
5. Other Comments on Program Integrity and Alternatives
G. Request for Preliminary Public Input Related to Future
Actions/Proposals
1. Use or Lose
2. Beneficiary Notification
H. Other Comments on the Proposed Rule
I. Out of Scope
J. Statutory and Regulatory Requirements
1. Administrative Procedure Act
2. Comments on the Regulatory Impact Analysis (RIA) (E.O. 12866
and E.O. 13563)
K. Severability
IV. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review) and
Executive Order 13563 (Improving Regulation and Regulatory Review)
1. Summary of Changes from NPRM to Final Rule
2. Background
3. Costs, Transfers, and Benefits of the Final Rule
i. Specialty Occupation Definition and Criteria
ii. Amended Petitions
iii. Deference to Prior USCIS Determinations of Eligibility in
Requests for Extensions of Petition Validity
iv. Evidence of Maintenance of Status
v. Eliminating the Itinerary Requirement for H Programs
vi. Validity Period Expires Before Adjudication
vii. H-1B Cap Exemptions
viii. Automatic Extension of Authorized Employment ``Cap-Gap''
ix. Provisions to Ensure Bona Fide Job Offer for a Specialty
Occupation Position
a. Contracts
b. Bona fide Employment
c. LCA Corresponds with the Petition
d. Revising the Definition of U.S. Employer
e. Employer-Employee Relationship
x. Beneficiary-Owners
xi. Site Visits
xii. Third-Party Placement (Codifying Policy Based on Defensor
v. Meissner (5th Cir. 2000))
4. Alternatives Considered
5. Total Quantified Net Costs of the Final Regulatory Changes
B. Regulatory Flexibility Act
C. Final Regulatory Flexibility Act (FRFA)
1. A statement of the need for, and objectives of, the rule
2. A statement of the significant issues raised by the public
comments in response to the IRFA, a statement of the assessment of
the agency of such issues, and a statement of any changes made in
the proposed rule as a result of such comments
3. The response of the agency to any comments filed by the Chief
Counsel for Advocacy of the Small Business Administration in
response to the proposed rule, and a detailed statement of any
change made to the proposed rule in the final rule as a result of
the comments
4. A description and an estimate of the number of small entities
to which the rule will apply or an explanation of why no such
estimate is available
5. A description of the projected reporting, recordkeeping, and
other compliance requirements of the rule, including an estimate of
the classes of small entities that will be subject to the
requirement and the types of professional skills necessary for
prepration of the report or record
6. A description of the steps the agency has taken to minimize
the significant economic impact on small entities consistent with
the stated objectives of applicable statutes, including a statement
of the factual, policy, and legal reasons for selecting the
alternative adopted in the final rule and why each of the other
significant alternatives to the rule considered by the agency was
rejected.
D. Unfunded Mandates Reform Act of 1995 (UMRA)
E. Congressional Review Act
F. Executive Order 13132 (Federalism)
G. Executive Order 12988 (Civil Justice Reform)
[[Page 103055]]
H. Executive Order 13175 (Consultation and Coordination with
Indian Tribal Governments)
I. National Environmental Policy Act (NEPA)
J. Paperwork Reduction Act
Table of Abbreviations
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
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
AICS--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. Executive Summary
DHS is amending its regulations by finalizing many of the
provisions proposed in the ``Modernizing H-1B Requirements, Providing
Flexibility in the F-1 Program, and Program Improvements Affecting
Other Nonimmigrant Workers,'' notice of proposed rulemaking (NPRM),
published in the Federal Register on October 23, 2023 (88 FR 72870).
DHS previously finalized portions of the NPRM relating to H-1B
registration in a separate final rule, ``Improving the H-1B
Registration Selection Process and Program Integrity,'' published in
the Federal Register on February 2, 2024 (89 FR 7456).
A. Purpose of the Regulatory Action
The purpose of this rulemaking is to modernize and improve the H-1B
program by: (1) clarifying the requirements of the H-1B program and
improving program efficiency; (2) providing greater benefits and
flexibilities for petitioners and beneficiaries; and (3) strengthening
program integrity measures.
B. Summary of the Major Provisions of the Regulatory Action
1. Clarifying Requirements and Improving Program Efficiencies
Through this rule, DHS is: (1) revising the regulatory definition
and criteria for a position to be deemed a ``specialty occupation'';
(2) clarifying that ``normally'' does not mean ``always'' within the
criteria for a specialty occupation; and (3) clarifying that the
petitioner may accept a range of qualifying degree fields as sufficient
to qualify for the position, but the required field(s) must be directly
related to the job duties in order for the position to be deemed a
specialty occupation. See new 8 CFR 214.2(h)(4)(ii) and (h)(4)(iii)(A).
DHS is also updating the regulations governing 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. See new 8 CFR
214.2(h)(2)(i)(E).
Additionally, DHS is codifying its current deference policy to
clarify that, when adjudicating a Form I-129, Petition for Nonimmigrant
Worker, involving the same parties and the same underlying facts,
adjudicators generally should defer to a prior USCIS determination on
eligibility, unless a material error in the prior approval is
discovered or other material change or information impacts the
petitioner's, beneficiary's, or applicant's eligibility. See new 8 CFR
214.1(c)(5). DHS is also updating the regulations to expressly require
that evidence of the beneficiary's maintenance of status must be
included with a petition seeking an extension or amendment of stay. See
new 8 CFR 214.1(c)(6). This policy impacts all employment-based
nonimmigrant classifications that use Form I-129, Petition for
Nonimmigrant Worker. DHS is also eliminating the itinerary requirement,
impacting all H classifications. See new 8 CFR 214.2(h)(2)(i)(B) and
(F). Additionally, DHS is updating the regulations to allow petitioners
to amend the initially requested validity periods (i.e., dates of
employment) in cases where the petition is deemed approvable after the
requested end date for employment has passed. See new 8 CFR
214.2(h)(9)(ii)(D).
2. Providing Greater Benefits and Flexibilities
DHS is modernizing regulatory definitions to provide additional
flexibilities for nonprofit and governmental research organizations and
petitions for certain beneficiaries who are not directly employed by a
qualifying organization. These changes better reflect modern
organizational and staffing structures for both nonprofit and
nongovernmental research organizations. Specifically, through this
rulemaking, DHS is changing the definition of ``nonprofit research
organization'' and ``governmental research organization'' by replacing
the terms ``primarily engaged'' and ``primary mission'' with
``fundamental activity'' to permit nonprofit entities or governmental
research organizations that conduct research as a fundamental activity,
but are not primarily engaged in research or where research is not a
primary mission, to meet the definition of a nonprofit research entity
or governmental research organization for purposes of establishing
exemption from the annual statutory limit on H-1B visas. Additionally,
DHS is revising the regulations to recognize that certain beneficiaries
may qualify for H-1B cap exemption when they are not directly employed
by a qualifying organization, but still spend at least half of their
time providing essential work that supports or advances a fundamental
purpose, mission, objective, or function of the qualifying
organization. See new 8 CFR 214.2(h)(8)(iii)(F)(2)(iv),
(h)(8)(iii)(F)(4), (h)(19)(iii)(B)(4), and (h)(19)(iii)(C). DHS is also
providing flexibility to students seeking to change their status to H-
1B by automatically extending the duration of their 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 to avoid disruptions in
lawful status and employment authorization while a petition requesting
a change of status to
[[Page 103056]]
H-1B is pending. See new 8 CFR 214.2(f)(5)(vi)(A).
3. Strengthening Program Integrity
DHS is strengthening the integrity of the H-1B program through this
rulemaking by: (1) requiring that the petitioner establish that it has
a bona fide position in a specialty occupation available for the
beneficiary as of the requested start date; (2) codifying its authority
to request contracts or similar evidence to determine if the position
is bona fide; (3) ensuring that the LCA supports and properly
corresponds to the petition; (4) revising the definition of ``United
States employer'' by codifying current DHS policy that the petitioner
have a bona fide job offer for the beneficiary to work within the
United States as of the requested start date; and (5) adding a
requirement that the petitioner have a legal presence and be amenable
to service of process in the United States. See new 8 CFR
214.2(h)(4)(i)(B)(1), (h)(4)(ii), and (h)(4)(iv)(C) and (D).
DHS is also clarifying that certain owners of the petitioning
entity may be eligible for H-1B status (``beneficiary-owners''), while
setting reasonable parameters around H-1B eligibility when the
beneficiary owns a controlling interest in the petitioning entity. For
example, USCIS will limit the validity of the initial H-1B petition and
first extension to 18 months each. See new 8 CFR 214.2(h)(9)(iii)(E).
DHS is also codifying USCIS' authority to conduct site visits and
clarifying that refusal to comply with site visits may result in denial
or revocation of the petition. See new 8 CFR 214.2(h)(4)(i)(B)(2).
Additionally, DHS is clarifying 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, the work to be performed by the
beneficiary for the third party must be in a specialty occupation, and
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. See new 8 CFR 214.2(h)(4)(i)(B)(3).
C. Summary of Costs and Benefits
DHS analyzed two baselines for this final rule, the no action
baselines and the without-policy baseline. The primary baseline for
this final rule is the no action baseline. For the 10-year period of
analysis of the final rule, DHS estimates the annualized net cost
savings of this rulemaking will be $333,835 annualized at a 2 percent
discount rate. DHS also estimates that there will be annualized
monetized transfers of $1.4 million from newly cap-exempt petitioners
to USCIS and $38.8 million from employers to F-1 workers, both
annualized at a 2 percent discount rate.
D. Summary of Changes From the Notice of Proposed Rulemaking
Following careful consideration of public comments received, this
final rule adopts many of the provisions proposed in the NPRM, with
revisions as described below.
1. Specialty Occupation Definition and Criteria
In response to commenters' concerns, DHS is modifying the
definition of specialty occupation from the proposed definition. After
carefully considering the comments, DHS is not finalizing the proposed
regulatory text, ``[t]he required specialized studies must be directly
related to the position,'' as this language may be misread to conclude
that USCIS would only consider a beneficiary's specialized studies in
assessing whether the position is a specialty occupation. DHS is,
however, retaining the ``directly related'' requirement in the
definition of ``specialty occupation'' and related criteria, and is
adding language clarifying that ``directly related'' means there is a
logical connection between the degree or its equivalent, and the duties
of the position.
The specialty occupation definition also clarifies that although
the position may allow for a range of qualifying degree fields, each of
the fields must be directly related to the duties of the position.
To address commenters' concerns about the potential for
adjudicators to inappropriately rely solely on degree titles, DHS is
removing the references to ``business administration'' and ``liberal
arts.'' These changes recognize that the title of the degree alone is
not determinative and that degree titles may differ among schools and
evolve over time.
DHS is also making some minor, non-substantive revisions to 8 CFR
214.2(h)(4)(iii)(A), which include: changing the word ``are'' to ``is''
in 8 CFR 214.2(h)(4)(iii)(A)(4); revising 8 CFR 214.2(h)(4)(iii)(A)(2)
from ``United States industry'' to ``industry in the United States'';
and revising 8 CFR 214.2(h)(4)(iii)(A)(2) and (3) by adding ``to
perform the job duties for'' rather than just the word ``position.''
2. Bar on Multiple Registrations Submitted by Related Entities
DHS will not finalize the proposed change at 8 CFR
214.2(h)(2)(i)(G) to expressly state in the regulations that related
entities are prohibited from submitting multiple H-1B registrations for
the same individual. On February 2, 2024, DHS published a final rule,
``Improving the H-1B Registration Selection Process and Program
Integrity,'' 89 FR 7456 (Feb. 2, 2024), creating a beneficiary-centric
selection process for registrations by employers and adding additional
integrity measures related to the registration process to reduce the
potential for fraud in the H-1B registration process. In that final
rule, DHS states that it ``intends to address and may finalize this
proposed provision [expressly stating in the regulations that related
entities are prohibited from submitting multiple registrations for the
same individual] in a subsequent final rule,'' but that ``[m]ore time
and data will help inform the utility of this proposed provision.'' 89
FR 7456, 7469 (Feb. 2, 2024). Initial data from the FY 2025 H-1B
registration process show a significant decrease in the total number of
registrations submitted compared to FY 2024, including a decrease in
the number of registrations submitted on behalf of beneficiaries with
multiple registrations.\1\ This initial data indicate that there were
far fewer attempts to gain an unfair advantage than in prior years
owing, in large measure, to the implementation of the beneficiary-
centric selection process.\2\ Under the beneficiary-centric selection
process, individual beneficiaries do not benefit from an increased
chance of selection if related entities each submit a registration on
their behalf. As such, DHS has decided not to finalize the proposed
change pertaining to multiple registrations submitted by related
entities.
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\1\ 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>.
\2\ 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>.
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3. Contracts
In response to stakeholder comments, DHS is revising 8 CFR
214.2(h)(4)(iv)(C) to state that USCIS may request contracts or similar
evidence ``showing the bona fide nature of the beneficiary's
position,'' rather than ``showing the terms and conditions of the
beneficiary's work'' as stated in the NPRM. This revision is intended
to clarify that USCIS will review contracts or similar evidence to
determine if the position is bona fide.
[[Page 103057]]
4. Non-Speculative or Bona Fide Employment
In response to a number of comments expressing concern with the
term ``non-speculative,'' DHS is replacing ``non-speculative'' with
``bona fide,'' so that new 8 CFR 214.2(h)(4)(iii)(F) will state, in
relevant part, ``[a]t the time of filing, the petitioner must establish
that it has a bona fide position in a specialty occupation available
for the beneficiary as of the start date of the validity period as
requested on the petition.'' This is not intended to be a substantive
change, but to clarify what DHS meant by ``non-speculative.'' This
provision is also consistent with current policy guidance that an H-1B
petitioner must establish that the purported employment exists at the
time of filing the petition and that it will employ the beneficiary in
a specialty occupation.
DHS is also adding to this provision, ``A petitioner is not
required to establish specific day-to-day assignments for the entire
time requested in the petition.'' While this was previously noted in
the preamble to the NPRM, DHS believes adding this clarification to the
regulatory text will help allay commenters' concerns and avoid future
confusion.
5. Beneficiary-Owners
In response to commenters' concerns about the term ``controlling
interest'' in the regulatory text for beneficiary-owners, DHS is
clarifying the term by defining it in the regulatory text, rather than
only in the preamble. Specifically, DHS is adding to new 8 CFR
214.2(h)(4)(ii) and (h)(9)(iii)(E), that a controlling interest means
that the beneficiary owns more than 50 percent of the petitioner or
that the beneficiary has majority voting rights in the petitioner.
6. Additional Changes
Additionally, in 8 CFR 214.1(c)(1), DHS is revising the reference
to the fee regulation from 8 CFR 103.7 to 8 CFR 106.2, to align with
the updated regulatory changes made by the USCIS Fee Schedule Final
Rule.\3\
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\3\ See ``U.S. Citizenship and Immigration Services Fee Schedule
and Changes to Certain Other Immigration Benefit Request
Requirements,'' 89 FR 6194 (Jan. 31, 2024).
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II. Background
A. Legal Authority
The authority of the Secretary of Homeland Security to make these
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 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 102 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.\4\ Further authority
for these regulatory amendments is found in:
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\4\ Although several provisions of the INA discussed in the 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, 586 U.S.
392, 397 n.2 (2019).
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<bullet> Section 101(a)(15) of the INA, 8 U.S.C. 1101(a)(15), which
establishes classifications for noncitizens who are coming temporarily
to the United States as nonimmigrants, including the H-1B
classification, see INA sec. 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 employer may
petition for nonimmigrant workers, including certain nonimmigrants
described at sections 101(a)(15)(H), (L), (O), and (P), 8 U.S.C.
1101(a)(15)(H), (L), (O), and (P); the information that an 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), which
authorizes ``any immigration officer'' . . . ``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 [the INA] and the administration of [DHS]'';
<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(h)(3) of the INA, 8 U.S.C. 1324a(h)(3), 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 which is material or relevant to the enforcement of the [INA]
and the administration of [DHS]'';
<bullet> Section 402 of the HSA, 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''; 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. 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
secs. 101(a)(15)(H)(i)(b) and 214(i), 8 U.S.C 1101(a)(15)(H)(i)(b) and
1184(i). Through the Immigration Act of 1990, Public Law 101-649,
Congress set the current annual cap for the H-1B visa category at
65,000,\5\ which limits the
[[Page 103058]]
number of beneficiaries who may be issued an initial H-1B visa or
otherwise provided initial H-1B status each fiscal year.\6\ Congress
provided an exemption from the numerical limits in INA sec.
214(g)(1)(A), 8 U.S.C. 1184(g)(1)(A), for 20,000 initial H-1B visas, or
grants of initial H-1B status, each fiscal year for foreign nationals
who have earned a master's or higher degree from a U.S. institution of
higher education (``advanced degree exemption'').\7\ Congress also set
up exemptions to the annual H-1B cap for 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. These exemptions are
not numerically capped. See INA sec. 214(g)(5)(A)-(B), 8 U.S.C.
1184(g)(5)(A)-(B).
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\5\ 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 secs. 101(a)(15)(H)(i)(b1), 214(g)(8), 8 U.S.C.
1101(a)(15)(H)(i)(b1), 1184(g)(8).
\6\ The 65,000 annual H-1B numerical limitation was increased
for FYs 1999 through 2003. See INA sec. 214(g)(1)(A), 8 U.S.C.
1184(g)(1)(A), as amended by section 411 of the American
Competitiveness and Workforce Improvement Act of 1998 (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 sec. 214(g)(5), 8 U.S.C. 1184(g)(5).
\7\ See INA sec. 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.''
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C. 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.
In 1992, legacy Immigration and Naturalization Service (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) 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.\8\ 8 CFR 214.2(f)(10). Employers of F-1 students under OPT
often file petitions to change the students' status to H-1B so that
they may continue working in their current or a similar job after
completion of OPT. 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. In order to remedy this, in 2008, DHS created the ``cap-
gap'' extension to temporarily extend the period of authorized stay and
work authorization of certain F-1 students caught in the gap between
the end of their OPT and the start date on their later-in-time
approved, cap-subject H-1B petition.\9\ 8 CFR 214.2(f)(5)(vi)(A). 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 visa status commences. DHS subsequently amended
the cap-gap provisions 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.\10\ 8 CFR
214.2(f)(5)(vi)(A).
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\8\ See ``Pre-Completion Interval Training; F-1 Student Work
Authorization,'' 57 FR 31954 (Jul. 20, 1992).
\9\ 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).
\10\ 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 13040 (Mar. 11, 2016).
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D. NPRM and Final Rules
On October 23, 2023, DHS published an NPRM, ``Modernizing H-1B
Requirements, Providing Flexibility in the F-1 Program, and Program
Improvements Affecting Other Nonimmigrant Workers,'' 88 FR 72870. In
the NPRM, DHS stated that it may publish one or more final rules to
codify the proposed provisions after carefully considering public
comments. On February 2, 2024, DHS published, ``Improving the H-1B
Registration Selection Process and Program Integrity,'' which finalized
provisions of the NPRM related to the H-1B registration process.\11\
Specifically, the final rule established a beneficiary centric
selection process for H-1B registrations and new integrity measures,
and provided start date flexibility for certain H-1B cap-subject
petitions. That rule took effect on March 4, 2024, prior to the
beginning of the registration period for the FY 2025 H-1B cap year.
Through this subsequent rulemaking, DHS is finalizing many of the
remaining provisions of the NPRM with the revisions described above and
in the relevant sections below.
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\11\ See 89 FR 7456.
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III. Response to Public Comments on the Proposed Rule
A. Summary of Public Comments on the Proposed Rule
In response to the proposed rule, DHS received 1,315 comments
during the 60-day public comment period. Of these, 510 comments were
related to the H-1B registration process and were analyzed and
addressed in the final rule published on February 2, 2024. There were
970 comments related to the remaining provisions that DHS is finalizing
through this rule. Some comments included a discussion of both the
registration process and the provisions being finalized through this
rulemaking. Of the 970 comments analyzed for this rule, 17 comments
were duplicate submissions, 1 comment was not germane to the rule, and
approximately 83 were letters submitted through mass mailing campaigns.
Commenters included individuals (including U.S. workers),
companies, law firms, a federation of labor organizations, professional
organizations, advocacy groups, nonprofit organizations,
representatives from Congress and local governments, universities, and
trade and business associations. Many commenters expressed support for
the rule or offered suggestions for improvement. Of the commenters
opposed to the rule, many commenters expressed opposition to a part of
or all of the proposed rule. Some just expressed general opposition to
the rule without suggestions for improvement. For many of the public
comments, DHS could not ascertain whether the commenter supported or
opposed the proposed rule.
DHS has reviewed and considered all of the public comments received
in response to the proposed rule. In this final rule, DHS is responding
to public
[[Page 103059]]
comments that are related to the provisions that DHS is finalizing
through this final rule. DHS's responses are grouped by subject area,
with a focus on the most common issues and suggestions raised by
commenters.
B. DHS/USCIS Statutory and Legal Issues
Comment: A law firm wrote that the proposed rule reflects USCIS'
commitment to seek opportunities within the bounds of the law to
maximize flexibility for employers and beneficiaries. A joint
submission by a professional association and an advocacy group
commended USCIS for seeking to modernize the H-1B program by creating
``opportunities for innovation and expansion'' in alignment with the
American Competitiveness and Workforce Improvement Act of 1998 (ACWIA)
and the American Competitiveness in the Twenty-first Century Act of
2000 (AC21). The commenters articulated the importance of these
statutes and the congressional intent behind them as multiple countries
(e.g., Canada, the United Kingdom (UK), Australia, and Germany) have
implemented new immigration programs to attract high-skilled workers.
Response: DHS agrees with these commenters that this rule will,
among other things, provide benefits and flexibilities for petitioners
and beneficiaries.
Comment: Some commenters perceived certain aspects of the proposed
rule to be unlawful or stated that the proposed provisions would
undermine prevailing statutes or Executive orders (E.O.). For example,
a professional association wrote that DHS's proposed revisions would
``fundamentally alter immigration laws that exceed [its] authority.''
Specifically, the association said that the proposed revisions would
``directly undermine INA sections 101(a)(15)(H) and 214(c)(1)(i) (sic)
and 8 CFR 214.2(h)(4)(B) (sic) via changing the definition of who
qualifies as an H-1B visa holder. . . .''
A business association asserted that certain proposed provisions in
the NPRM are unlawful as written, including the proposed specialty
occupation definition, non-speculative employment requirement, third-
party placement provisions, site visit authorities, and USCIS'
authority to review LCAs. The association further remarked that these
provisions would hinder the objectives of E.O. 14410 to develop
artificial intelligence (AI) capabilities in the United States. As
such, the association urged DHS to issue supplemental notices to
withdraw these provisions or propose substantial changes to address
their legal deficiencies, providing the public with the opportunity to
comment on the revisions to the proposed rule. A trade association
wrote that the proposed changes to visa qualifications and review
processes would undermine E.O. objectives to ``attract and retain
talent in AI and other critical and emerging technologies in the United
States economy'' by jeopardizing the ability of H-1B nonimmigrants to
renew their visas.
A trade association wrote that DHS has neglected the congressional
purpose of the H-1B program and has exceeded its statutory authority.
Citing various examples found in statute and case law related to split
enforcement powers and agency jurisdiction, the association stated that
DOL has a greater share of authority and enforcement powers in the H-1B
program compared to DHS's statutory carve-out. For example, the
commenter asserted that while Congress delegated to DOL the authority
to set wages, conduct investigations and enforcement actions, and
protect U.S. labor interests (e.g., through setting the prevailing wage
and requiring the same conditions for H-1B workers and U.S. workers),
DHS's authority, codified at 8 U.S.C. 1184(i), focuses on determining
whether the petitioner seeks to employ a professional in a ``specialty
occupation.'' The association concluded that the authority to regulate
the area of employment and definition of employer belongs to DOL, not
DHS, and suggested that DHS constrain its regulatory scheme to the
areas intended by Congress, applying DOL's definitions of key terms
associated with the H-1B program. A professional association generally
encouraged DHS to improve the legal integrity of H-1B regulations and
advance policy goals that align with congressional intent.
Response: DHS disagrees with the commenters' assertions that the
proposed changes that are being finalized in this rule are ultra vires.
DHS will not issue a supplemental notice to withdraw the proposed
changes, or propose substantial changes as commenters suggested. The
changes being made by this final rule are within the broad authority
delegated to DHS by statute. The changes enhance the integrity of the
H-1B program and provide needed clarification to existing rules,
policies, and practices so that petitioners have greater clarity,
transparency, and predictability as to the requirements for the H-1B
classification.
DHS's authority to regulate in the H-1B context is not limited, as
some commenters asserted, to INA section 214(i), 8 U.S.C. 1184(i). That
section pertains solely to the definition of ``specialty occupation.''
Rather, as explained in the proposed rule and in this final rule, DHS's
authority is also derived from various provisions in the INA and HSA,
including, but not limited to: INA section 101(a)(15)(H)(i)(b), 8
U.S.C. 1101(a)(15)(H)(i)(b); INA section 103(a), 8 U.S.C. 1103(a); INA
section 214(a)(1), 8 U.S.C. 1184(a)(1); INA section 214(c), 8 U.S.C.
1184(c); INA section 214(g), 8 U.S.C. 1184(g); INA section 235(d)(3), 8
U.S.C. 1225(d)(3); INA section 287(b), 8 U.S.C. 1357(b); HSA section
112, 6 U.S.C. 112; HSA section 402, 6 U.S.C. 202; and HSA section
451(a)(3) and (b), 6 U.S.C. 271(a)(3) and (b). Collectively, these
various provisions provide DHS with broad authority to promulgate
regulations to administer and enforce the H-1B nonimmigrant
classification.
DHS disagrees with some commenters' assertions that the proposed
changes to the definition of specialty occupation are ultra vires
because the statute does not contain the term ``directly related.''
While commenters are correct that INA section 214(i), 8 U.S.C. 1184(i),
does not use the term ``directly related,'' the statute does refer to
application of a body of highly specialized knowledge and attainment of
a bachelor's or higher degree in the specific specialty (or its
equivalent) as a minimum for entry into the occupation. DHS interprets
the ``specific specialty'' requirement in INA section 214(i)(1)(B), 8
U.S.C. 1184(i)(1)(B), to relate back to the body of highly specialized
knowledge requirement referenced in INA section 214(i)(1)(A), 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 equivalent, provides a body of
highly specialized knowledge directly related to the duties and
responsibilities of the particular position as required by INA section
214(i)(1)(A). Because an occupation may involve application of multiple
bodies of highly specialized knowledge, ``specific specialty'' is not
limited to one degree field, or its equivalent, but may include
multiple degree fields, or equivalents, that provide the body of highly
specialized knowledge to be applied when performing the occupation. The
requirement that each degree field, or its equivalent, be directly
related to the position is the best interpretation of the statutory
text
[[Page 103060]]
and consistent with existing USCIS practice.\12\
---------------------------------------------------------------------------
\12\ See, e.g., Madkudu Inc. v. USCIS, No. 5:20-cv-2653-SVK
(N.D. Cal. Aug. 20, 2021) Settlement Agreement at 4 (``[I]f 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 . . ., 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
Oct. 23, 2024).
---------------------------------------------------------------------------
DHS disagrees with the assertion of some commenters that USCIS does
not have authority to review the contents of an LCA. The authority
provided to DOL under INA section 212(n), 8 U.S.C. 1182(n), does not
deprive DHS of authority to administer and enforce the H-1B
nonimmigrant classification. Congress provided DHS with broad authority
to administer and enforce the H-1B nonimmigrant classification, in
addition to the authority provided to DOL to administer and enforce
requirements pertaining to LCAs. See ITServe Alliance, Inc. v. U.S.
Dep't of Homeland Sec., 71 F.4th 1028, 1037 (D.C. Cir. 2023) (the
authorities provided to DOL under 8 U.S.C. 1182(n) ``are not by their
terms exclusive, so as to oust USCIS from its own authority over the H-
1B petition process. And the INA strongly suggests that the agencies'
respective authorities are complementary rather than exclusive. . .
.''). As the U.S. Court of Appeals for the D.C. Circuit explained, INA
section 103(a)(1), 8 U.S.C. 1103(a)(1), independently provides DHS with
authority to administer and enforce the INA, including a petitioning
employer's compliance with the terms of an LCA. Id.
Commenters' assertions that DHS does not have authority to regulate
the area of employment and definition of employer are similarly
misplaced. As explained in the preamble to the proposed rule and in
this final rule, DHS's authority in the H-1B context is not solely
derived from INA section 214(i), 8 U.S.C. 1184(i). That provision only
addresses the definition of ``specialty occupation.'' But the broad
authority delegated or otherwise provided to DHS, which includes the
authority to regulate the area of employment and definition of employer
for purposes of provisions enforced by DHS, is provided in various
other provisions, including, but not limited to: INA section 103(a), 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; INA section 214(a)(1), 8 U.S.C. 1184(a)(1), which authorizes
the Secretary to prescribe, by regulation, the time and conditions of
the admission of nonimmigrants; and INA section 214(c)(1), 8 U.S.C.
1184(c)(1), which authorizes the Secretary to prescribe how an employer
may petition for an H-1B worker and to prescribe the form and
information required in an H-1B petition. Commenters' assertion that
DHS does not have the authority to regulate who may qualify as an H-1B
employer because INA section 214(i), 8 U.S.C. 1184(i), does not include
the term ``employer,'' is contrary to the express reference to
``employer'' in INA section 214(c)(1), 8 U.S.C. 1184(c)(1), and the
authority delegated or otherwise provided to DHS therein.\13\
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\13\ Other H-1B related provisions in the statute also refer
specifically to the petitioning employer, employment, or being
employed as an H-1B worker. See, e.g., INA secs. 214(c)(9), (10),
(12), and (g)(5) and (6); 8 U.S.C. 1184(c)(9), (10), (12), and
(g)(5) and (6).
---------------------------------------------------------------------------
DHS disagrees with commenters' assertion that it lacks authority to
conduct on-site inspections through the USCIS Fraud Detection and
National Security Directorate (FDNS). In 2004, USCIS established FDNS
in response to a congressional recommendation to establish an
organization ``responsible for developing, implementing, directing, and
overseeing the joint USCIS-Immigration and Customs Enforcement (ICE)
anti-fraud initiative and conducting law enforcement/background checks
on every applicant, beneficiary, and petitioner prior to granting
immigration benefits.'' \14\
---------------------------------------------------------------------------
\14\ See Conference Report to accompany H.R. 4567 [Report 108-
774], ``Making Appropriations for the Department of Homeland
Security for the Fiscal Year Ending September 30, 2005,'' p. 74
(Oct. 9, 2004), <a href="https://www.gpo.gov/fdsys/pkg/CRPT-108hrpt774/pdf/CRPT-108hrpt774.pdf">https://www.gpo.gov/fdsys/pkg/CRPT-108hrpt774/pdf/CRPT-108hrpt774.pdf</a>.
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The site visits and inspections conducted by FDNS are authorized
through multiple legal authorities. Congress delegated to the Secretary
of Homeland Security the authority to administer and enforce the
immigration laws. INA sec. 103(a)(1), 8 U.S.C. 1103(a)(1). The
Secretary may confer this authority to any Department of Homeland
Security (DHS) employee, including USCIS employees, to the extent
permitted by law. INA sec. 103(a)(4), 8 U.S.C. 1103(a)(4); HSA sec.
102(b)(1), 6 U.S.C. 112(b)(1); 8 CFR 2.1.\15\ Moreover, under 6 U.S.C.
112(a)(3), all functions of officers, employees, and organizational
units of [DHS] are vested in the Secretary. The Secretary of Homeland
Security delegated to USCIS the authority to administer the immigration
laws, including the authority to investigate civil and criminal
violations involving applications or determinations for benefits.\16\
Following the dissolution of the INS and the creation of DHS on March
1, 2003, authority to ``administer the immigration laws'' was delegated
to USCIS.\17\
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\15\ Pursuant to 8 CFR 2.1, all authorities and functions of the
Department of Homeland Security to administer and enforce the
immigration laws are vested in the Secretary of Homeland Security.
The Secretary of Homeland Security may, in the Secretary's
discretion, delegate any such authority or function to any official,
officer, or employee of the Department of Homeland Security,
including delegation through successive redelegation, or to any
employee of the United States to the extent authorized by law. Also,
because INA sec. 103(a)(4) refers to ``Service'', i.e. Legacy INS,
see also 8 CFR 1.2 which defines Service as ``U.S. Citizenship and
Immigration Services, U.S. Customs and Border Protection, and/or
U.S. Immigration and Customs Enforcement, as appropriate in the
context in which the term appears.''
\16\ Delegation to the Bureau of Citizenship and Immigration
Services, Department of Homeland Security Delegation Number 0150.1,
Issue Date: 06/05/2003. The Bureau of Citizenship and Immigration
Services was the initial name for USCIS following the dissolution of
the Immigration and Naturalization Service.
\17\ See Delegation 0150.1(II)(H) (June 5, 2003).
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USCIS was delegated the ``authority to investigate alleged civil
and criminal violations of the immigration laws, including, but not
limited, to alleged fraud with respect to applications or
determinations within the USCIS, and make recommendations for
prosecutions, or other appropriate action when deemed advisable.'' \18\
USCIS also has the ``authority to interrogate aliens and issue
subpoenas, administer oaths, take and consider evidence, and
fingerprint and photograph aliens under sections 287(a), (b), and (f)
of the INA, 8 U.S.C. 1357 and under 235(d) of the INA, 8 U.S.C.
1225(d).'' \19\
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\18\ See Delegation 0150.1(II)(I) (June 5, 2003).
\19\ See Delegation 0150.1(II)(S) (June 5, 2003).
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USCIS and ICE were granted concurrent authority to investigate
immigration benefit fraud.\20\ Through
[[Page 103061]]
written agreement, ICE agreed to take the lead on criminal and other
enforcement investigations and USCIS agreed to focus on detecting and
combating fraud associated with adjudicating applications and
petitions.\21\ The Homeland Security Act of 2002, Public Law 107-296,
116 Stat. 2135, granted the Secretary of Homeland Security the
authority to administer and enforce provisions of the INA, as amended,
INA sec. 101, 8 U.S.C. 1101 et seq. The Secretary, in Homeland Security
Delegation No. 0150.1, delegated certain authorities to USCIS. FDNS's
activities fall squarely within this delegation.
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\20\ In section (II)(I) of DHS Delegation Number 0150.1,
Delegation to the Bureau of Citizenship and Immigration Services,
and in section 2(I) of DHS Delegation Number 7030.2, Delegation of
Authority to the Assistant Secretary for the Bureau of Immigration
and Customs Enforcement, USCIS and ICE received concurrent authority
to investigate fraud involving immigration benefits available under
the INA. In their respective delegations, USCIS and ICE were further
directed by the Secretary of Homeland Security to coordinate the
concurrent responsibilities provided under these Delegations. A
memorandum of agreement was undertaken to advance the coordination
between USCIS and ICE, as authorized by these Delegations. The
Secretary of Homeland Security has properly delegated authority to
immigration officers, including immigration officers who work for
FDNS.
\21\ Memorandum of Agreement between USCIS and ICE on the
Investigation of Immigration Benefit Fraud, September 25, 2008; see
also Memorandum of Agreement between USCIS and ICE Regarding the
Referral of Immigration Benefit Fraud and Public Safety Cases (Dec.
15, 2020).
---------------------------------------------------------------------------
Further, regulations support the FDNS activities that are described
in this rule. For example, 8 CFR 1.2, defines ``immigration officer''
to include a broad range of DHS employees including immigration agents,
immigration inspectors, immigration officers, immigration services
officers, investigators, and investigative assistants. As duly
appointed immigration officers, FDNS immigration officers may question
noncitizens based on the authority delegated to them by the Secretary
of Homeland Security. Furthermore, INA sec. 287(a)(1), 8 U.S.C.
1357(a)(1), provides any officer or employee of the Service with the
authority (pursuant to DHS regulations) to, without warrant,
``interrogate any alien or person believed to be an alien as to his
right to be or remain in the United States.'' See also 8 CFR 287.5. The
regulation at 8 CFR 287.8(b) specifically sets out standards for
interrogation and detention not amounting to arrest, wherein
immigration officers can question an individual so long as they do not
restrain the freedom of the individual. Further, the Board of
Immigration Appeals has recognized that the reports produced by FDNS
based on site visits and field investigations are ``especially
important pieces of evidence.'' \22\ These investigations and resulting
reports help ensure that adjudicative decisions are made with
confidence by providing information that would otherwise be unavailable
to USCIS.
---------------------------------------------------------------------------
\22\ Matter of P. Singh, 27 I&N Dec. 598, 609 (BIA 2019)
(``Detailed reports from on-site visits and field investigations are
especially important pieces of evidence that may reveal the presence
of fraud.'').
---------------------------------------------------------------------------
Lastly, DHS disagrees that this final rule is inconsistent with the
Executive Order on Artificial Intelligence.\23\ That Executive order,
among other things, directed DHS to ``continue its rulemaking process
to modernize the H-1B program and enhance its integrity and usage,
including by experts in AI and other critical and emerging
technologies. . . .'' DHS satisfied this part of the Executive order
through its continued work to complete and publish this final rule. As
explained throughout this preamble, this final rule, along with the
final rule published on February 2, 2024,\24\ modernizes the H-1B
program and enhances its integrity and use by, among other things,
providing greater clarity, transparency, and predictability regarding
eligibility for the H-1B classification. As explained further below,
DHS disagrees that requiring a direct relationship between the required
degree field(s), or their equivalents, and the duties of the position
is inconsistent with E.O. 14110 or creates additional hurdles for
foreign nationals seeking to work in AI or other science, technology,
engineering, and math (STEM) fields. As stated previously, DHS is
codifying and clarifying long-standing USCIS practice to provide
greater clarity and predictability for employers and foreign nationals,
including those seeking to work in AI or other STEM fields.
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\23\ E.O. 14110, ``Executive Order on Safe, Secure, and
Trustworthy Development and Use of Artificial Intelligence.''
\24\ ``Improving the H-1B Registration Selection Process and
Program Integrity'', 89 FR 7456 (Feb. 2, 2024).
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C. General Comments
1. General Support for the Rule
Comment: Several individual commenters expressed support for the
proposed rule without rationale, with some expressing ``strong''
support. A couple of individual commenters thanked USCIS for
modernizing the H-1B program. An individual commenter wrote that,
``this is life changing,'' and another commenter wrote that, ``this is
a great and substantial improvement.'' Another commenter applauded
various specific measures of the rule, including those pertaining to
deference, evidence of job offers, oversight, and streamlining the H-1B
process.
Response: DHS agrees that the provisions in this rule will
modernize and improve the H-1B program.
Comment: Several commenters expressed general support for the
proposed rule because of positive impacts on program operability,
oversight, integrity, and government efficiency. Many commenters
expressed support for the proposed rule, reasoning that it would foster
fairness in the H-1B program, reduce abuse and promote program
integrity, and create a more efficient system. A few commenters
expressed support for the proposed rule, reasoning it would improve
program efficiency and reduce administrative burdens, and could result
in smoother, more streamlined procedures that are easier to follow. A
commenter wrote that the proposed rule is a ``significant step towards
creating a more inclusive and efficient immigration system.''
Response: DHS agrees with these commenters that the provisions in
this rule will have positive impacts on program operability and
integrity. Many of the provisions being finalized through this rule are
intended to promote program integrity and create a more efficient
system.
Comment: Several commenters, including a joint submission,
expressed support for the proposed rule on the basis that it would have
positive impacts on prospective beneficiaries. A commenter wrote that
the proposed rule has the potential to provide highly skilled
professionals with the chance to secure employment in and make
meaningful contributions to the United States. A commenter said that it
is crucial to protect nonimmigrant workers' rights and ensure that they
are treated fairly, and that this proposed rule is a ``significant step
in the right direction.'' The commenter urged USCIS to fully implement
the proposed rule. Another commenter expressed their agreement with the
proposed changes, having seen their colleagues leave the United States
every year due to losing their valid visa status. A commenter expressed
support for the proposed rule, writing that providing greater
flexibility for beneficiaries is a ``much-needed change.'' The
commenter added making the visa renewal process easier could
significantly reduce hurdles and uncertainties that foreign workers
face.
Response: DHS agrees with these commenters that the provisions in
this rule will have positive impacts on prospective beneficiaries and
provide beneficiaries with greater flexibility. DHS's intent is to make
the H-1B process more efficient and fairer by reducing administrative
hurdles and uncertainties through this rulemaking, such as codifying
USCIS' deference policy to make it clear 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, and giving USCIS officers the discretion to issue
RFEs to allow petitioners to request amended validity periods where the
initial
[[Page 103062]]
requested validity period expires before adjudication.
Comment: Many commenters, including a trade association, a company,
and a joint submission, expressed support for the proposed rule,
reasoning that it would strengthen the U.S. job market and economy. A
trade association commented that streamlining the H-1B program
requirements and improving program integrity would enable the United
States to retain valuable international talent. A company said that
they appreciate DHS's effort to improve the H-1B system, adding that a
modern H-1B program that reflects today's economy would keep the United
States attractive to global talent and ensure that U.S. employers can,
``maintain a comprehensive workforce.'' An advocacy group wrote that
the proposed provisions aimed at modernizing and streamlining the H-1B
program would ``strengthen the nation's capacity to attract and retain
essential global talent'' in artificial intelligence and other fields
in emerging technology.
A commenter expressed strong support for the proposed rule, writing
that it would ``bolster the nation's competitive edge'' and promote
economic growth. A couple of other commenters similarly wrote that the
proposed changes to the H-1B program would give the United States a
global competitive advantage and attract the brightest minds from
around the world. One of these commenters added that streamlining the
visa process could benefit the U.S. economy and encourage innovation.
Another commenter also expressed their support for the proposed rule
for similar reasons, writing that the proposed changes to improve the
H-1B program would create jobs and benefit not only U.S. employers but
also professionals who want to contribute to the United States'
success. A few commenters expressed support for the proposed rule on
the basis that, under the current H-1B policies, many talented
individuals are leaving the United States, and the proposed rule would
prevent this from continuing. One of these commenters wrote that
modernizing the H-1B program is essential for retaining top talent and
allowing the United States to become ``competitive once again on the
global stage.''
Response: DHS agrees with these commenters that clarifying the H-1B
program requirements and improving program integrity will help enable
the United States retain valuable international talent. Through the
provisions in this rulemaking, DHS's goal is to keep the United States
attractive to global talent, benefit the U.S. economy, and encourage
innovation.
2. General Opposition to the Rule
Comment: Several commenters, including an advocacy group, expressed
opposition to the proposed rule on the basis that it would undermine
the program's integrity and increase fraud. An individual commenter
stated that the regulations do not satisfactorily address their
perceived problems of the H-1B program.
Response: DHS disagrees with these commenters that the provisions
in this rulemaking will undermine the H-1B program or increase fraud.
DHS is finalizing several provisions that aim to increase program
integrity, such as codifying its authority to request contracts,
requiring that the petitioner establish it has an actual, bona fide
position in a specialty occupation available for the beneficiary as of
the requested start date, and codifying USCIS' authority to conduct
site visits, to name a few.
Comment: Numerous commenters said the rule would negatively impact
U.S. citizen workers by incentivizing the hiring of H-1B workers. In
particular, commenters stated that the proposed rule would harm and
undermine American workers, particularly those in the technology
industry; does not adequately safeguard American workers and makes it
easier for American companies to obtain foreign labor; would benefit
large employers, while putting American job seekers at a disadvantage;
and would incentivize employers to hire ``cheaper foreign labor'' and
avoid taxes at the expense of U.S. citizens.
A commenter urged USCIS to make the H-1B program stricter, stating
that the Federal Government should work towards improvements for U.S.
citizens, rather than immigrant labor. A couple of commenters,
including a professional association, wrote that American students that
have graduated with specialty degrees are unable to gain employment.
Response: DHS disagrees that this rulemaking would undermine
American workers or put American job seekers at a disadvantage. The
existing H-1B statutory and regulatory requirements include protections
for U.S. workers and this rulemaking does not remove or diminish any
protections or place U.S. workers at a disadvantage in the job market.
The goal of this rulemaking is to modernize and improve the integrity
of the H-1B program. In fact, this final rule will improve H-1B
integrity and build upon the existing protections for U.S. workers by
clarifying that the LCA must properly correspond to the H-1B petition,
and codifying the authority of USCIS to conduct site visits and take
adverse action against employers who are not complying with the terms
of the H-1B petition approval or who refuse to comply with a site
visit.
Comment: A few commenters noted that the proposed rule could make
it more difficult for small and medium-sized consulting companies to
navigate the H-1B process. More specifically, a few commenters,
including a couple of trade associations and a law firm, stated that
the U.S. information technology (IT) industry's ability to hire
reliable foreign talent would be negatively affected, which would harm
the competitiveness of American businesses, research facilities,
medical institutions, and other important economic drivers. A few
commenters, including a company, remarked that the proposed rule would
make it difficult for IT consulting companies to utilize the H-1B visa,
which would cause the economy to suffer. A business association
articulated concerns among its members that various proposals would
cause significant disruptions to their operations across industries. In
addition, a commenter stated that the proposed rule would hamper
companies' ability to serve their customers given labor shortages,
inflation, and budgetary constraints.
Response: DHS disagrees with these commenters that the provisions
in this rulemaking will make it more difficult for certain companies to
navigate the H-1B process or cause disruptions for certain industries.
Through this rulemaking, DHS is codifying many policies and practices
that are already in place, such as requiring that the LCA properly
correspond to the petition and when to file an amended petition.
Through this rulemaking, DHS's intent is to clarify current policy and
add transparency and greater predictability to the adjudication
process.
3. Other General Comments on the Rule
Comment: An individual commenter, while expressing support for
``the broad goal of modernization and program improvements,'' noted the
importance of measures to prevent the exploitation of foreign workers
and to ensure that they are provided fair wages and working conditions;
prioritizing streamlining and efficiency in program administration,
measures to protect and support international students, and data
collection and analysis; and that DHS should actively engage with
stakeholders to solicit input and feedback during the rulemaking
process.
[[Page 103063]]
Response: While the commenter did not provide any specific feedback
related to the provisions in the NPRM, DHS generally agrees with the
considerations noted by the commenter. As stated previously, the
purpose of this rulemaking is to modernize and improve the efficiency
of the H-1B program, add benefits and flexibilities, and strengthen
integrity measures. The modernization provisions will enhance
efficiencies, and the integrity measures are intended to prevent
exploitation of foreign workers and protect the interests of U.S.
workers. Further, by finalizing the provision to expand cap-gap
protection, this rule supports international students. DHS has also
engaged in extensive data collection and analysis in this rulemaking,
as detailed in the NPRM, the previously published final rule
``Improving the H-1B Registration Selection Process and Program
Integrity,'' and this final rule. In addition, DHS has engaged with
stakeholders by requesting public comments in response to the NPRM.
D. Modernization and Efficiencies
1. General Comments on the Proposed Modernization and Efficiencies
Provisions
Comment: Many commenters supported the proposed modernization
provisions, including a joint submission by commenters who stated
general support for DHS's initiative to modernize the H-1B program. A
couple of commenters regarded the modernization efforts as
``commendable,'' while another commenter said the modernization
measures were ``long overdue.'' This commenter and another commenter
reasoned that the modernization provisions would streamline
administrative tasks and remove disruptions in the program. A commenter
expressed support for the modernization provisions, stating that they
would help prevent artificial manipulation of the job market.
Echoing support for the NPRM's modernization efforts, a company
noted that the United States' outdated immigration laws must be updated
to meet the needs of the economy. A different commenter applauded the
modernization effort and urged its implementation in order to benefit
U.S. economic competitiveness. A trade association similarly endorsed
the H-1B modernization provisions as advancing the United States'
global leadership in specialized fields, such as STEM. Specifically,
the association reasoned that the sustainability of U.S. leadership
depends on semiconductor companies having access to top domestic and
global talent.
Some commenters offered mixed remarks on the modernization
provisions. For example, a commenter urged policymakers to take
immediate action to implement the modernization provisions while
highlighting the importance of balancing between welcoming global
talent and safeguarding the interests of U.S. citizen workers. Another
commenter offered conditional support for the modernization provisions
as long as there is no disruption to existing H-1B visa holders.
A few commenters expressed support for efficiency measures as part
of the proposed rule. For example, a commenter expressed general
approval of DHS's plans to improve clarity and efficiency. Another
commenter said that streamlining the eligibility requirements,
improving program efficiency, and providing greater benefits and
flexibilities for both employers and workers are crucial steps toward
creating a more efficient and responsive immigration system. Another
commenter described the importance of the H-1B visa program to the U.S.
economy and of increased program efficiency, and noted technology,
medicine, and research as particular industries that could benefit from
the modernization provisions.
Response: DHS agrees that modernizing the H-1B program and
increasing program efficiency are important and may help to streamline
administrative tasks. As explained in the NPRM, the purpose of this
rulemaking is to modernize and improve the H-1B regulations by: (1)
clarifying the requirements of the H-1B program and improving program
efficiency; (2) providing greater benefits and flexibilities for
petitioners and beneficiaries; and (3) strengthening H-1B integrity
measures.
2. Specialty Occupation Definition and Criteria
i. General Comments on the Proposed Changes to ``Specialty Occupation''
Comment: Several commenters expressed support for the proposed
changes to the specialty occupation requirements and standards. For
example, a commenter said that the specialty occupation revisions are a
``good step'' for H-1B program modernization. Other commenters
expressed general support for the specialty occupation requirements or
specialized degree requirements for specialized work. Several
commenters generally supported the proposed specialty occupation
requirements noting that they would help curb fraud and abuse by
certain types of companies. A university stated it was hopeful that the
proposed modifications to the specialty occupation requirements would
reduce the number of Requests for Evidence (RFE) that it receives when
filing H-1B petitions for faculty and staff. In addition, a
professional association expressed support for DHS's proposed changes
to clarify the ``special occupation'' standard, codify existing
practice, and align the regulations with the authorizing statute. The
association said that the changes would avoid misapplication of the
regulations in petitions involving new employment.
Response: DHS agrees that the specialty occupation revisions, as
slightly modified from the NPRM to better reflect current practice,
will be beneficial for H-1B program modernization and integrity. DHS
also agrees that clarifying the specialty occupation standard and
codifying existing practice may help reduce unnecessary RFEs, avoid
misapplication of the regulations, better align the regulations with
the authorizing statute, and provide H-1B petitioners with more
certainty as to the applicable adjudication standards.
Comment: Several commenters expressed general opposition to the
proposed specialty occupation changes. For example, a form letter
campaign and another commenter generally stated that they did not
support the proposed specialty occupation provisions, and other
commenters suggested that DHS reconsider the specialty occupation
requirements without providing further rationale. A few commenters
requested that USCIS remove the definition of ``specialty occupation''
from the rule, reconsider its implementation, or modify the definition.
A few other commenters stated that the ``specialty occupation''
definition should be broadened so that individuals are not limited to
positions just within their field of study or degree.
Response: DHS declines to remove the definition of specialty
occupation from the rule but is modifying the definition in response to
comments received. These modifications include removing the references
to general degree titles and defining the term ``directly related.''
DHS declines to broaden the definition of specialty occupation to
specifically state that individuals are not limited to positions within
their field of study, as such language conflates the issue of whether a
position qualifies as a specialty occupation with the issue of whether
the beneficiary is qualified to
[[Page 103064]]
perform the specialty occupation. Further, the proposed definition
already states that a position may allow for a range of qualifying
degree fields, provided that each of those fields is directly related
to the duties of the position.
Comment: Several commenters questioned whether the changes to the
specialty occupation definition and criteria are consistent with DHS's
stated intent to codify existing practices. For instance, an advocacy
group expressed concern that, while the Department views the updated
regulations as a codification of existing practices, the new definition
and criteria could, in practice, change the way petitions are
adjudicated. The group said that the strict application of the
regulatory text, which in its view does not reflect the broader
analysis described in the preamble, could result in an overly narrow
application of the provisions. The group proposed that the Department
either abandon the proposed changes or amend the regulatory text to
reflect the analysis described in the preamble by stating explicitly
that USCIS will conduct fair evaluations of specialized coursework and
training.
Numerous other commenters also expressed concerns with respect to
how USCIS will consider work experience, skills, and demonstrated
competencies to fulfill the specialty occupation degree requirements.
These commenters indicated that the consideration of work experience
and skills would better ensure that USCIS determinations reflect
evolving workforce realities of employer demands for individuals to
fill specialized roles which require professionals to adapt and develop
new skills. Commenters also said that consideration of experience and
skills would accommodate new and emerging technologies and be
consistent with the dynamic nature of industries. The commenters said
that experience should be a factor in determining specialty
occupations, as experience equips individuals with hands-on skills,
industry insights, and problem-solving abilities that are often not
fully captured by academic qualifications alone. A couple of the
commenters added that experience frequently links theoretical and
practical competence, serving as a trustworthy gauge of a candidate's
ability to meet the demands of their line of work. Likewise, a company
expressed support for the updates and simplification of the specialty
occupation definition, but also expressed concern that the proposed
changes would lead to a perfunctory assessment of the relatedness of a
beneficiary's specialty to the position while neglecting the nuances of
the educational backgrounds required for innovation in the technology
sector. The company urged DHS to protect the individualized framework
and improve it by enhancing clarity and preserving flexibility in the
H-1B program, allowing for continual modernization in line with
emerging technological developments.
Several commenters recommended DHS revise the regulatory text to
clarify that USCIS will consider relevant coursework or courses of
study alongside the degree field in its decision-making, consistent
with established preexisting agency practices. A trade association
recommended that DHS rescind the proposed changes or amend the
regulatory text to better codify existing agency practices, for
example, by expressly requiring adjudicators to consider the coursework
underlying a particular degree as well as the petitioner's explanation
as to why the degree is directly related to the relevant occupation. A
company similarly encouraged DHS to revise its definition and criteria
to focus on the courses completed in a degree program, and provided
revised regulatory text to reflect this change.
Several commenters expressed general concern with the use of the
terms ``degrees'' and ``positions'' in the specialty occupation
definition and criteria, reasoning that the proposed language is
misaligned with longstanding agency practices. For example, a Federal
elected official, associations, and a joint submission, suggested
alternative regulatory language, proposing that DHS use the term
``course of study'' instead of ``degree'' in the definition of
``specialty occupation'' at proposed 8 CFR 214.2(h)(4)(ii) and position
criteria requirements at 8 CFR 214.2(h)(4)(iii)(1) through (4). These
commenters also proposed that DHS substitute ``job duties of the
position'' or ``job duties'' for references to ``the position'' in the
specialty occupation definition at 8 CFR 214.2(h)(4)(ii) and position
criteria requirements at 8 CFR 214.2(h)(4)(iii)(A)(1) through (4).
Additionally, commenters claimed that DHS should use the terms
``degrees'' or ``positions'' in reference to the statutory standard,
but the modernized regulations should reflect longstanding agency
practices by omitting degree references (e.g., business administration)
and incorporating references to courses of study and job duties. A
Federal elected official wrote that while the proposed rule seeks to
clarify existing agency practices for specialty occupation
adjudications, the use of the terms ``degrees'' and ``positions''
instead of ``courses studied'' and ``duties of the position'' fails to
capture longstanding agency policy, creating unreasonable requirements
for employers and professionals. The official warned that focusing on
degree titles and positions would deviate from existing policy and
preclude those who would otherwise qualify for H-1B classification.
Another commenter expressed particular concern with the proposed rule's
use of terms like ``degrees'' and ``positions'' and their view that the
rule is misaligned with longstanding agency practices.
Additionally, commenters urged DHS to finalize the rule to better
reflect longstanding agency practices by omitting references to
particular types of degrees (e.g., business administration) and
incorporating references to courses of study and job duties within the
specialty occupation definition and criteria. A few commenters wrote
that, although DHS explains that referring to the degree title was for
``expediency'' and the agency separately evaluates the beneficiary's
actual course of study, the ``binding'' regulatory language fails to
capture the realities of preexisting agency practices. A trade
association expressed concern that the proposed regulations, as
written, could significantly narrow the types of degrees that USCIS
would accept for a given occupation, and that the rule fails to codify
existing practices that manufacturers use to demonstrate compliance.
Response: DHS agrees that it is important to improve the H-1B
program by enhancing clarity and preserving flexibility to align with
emerging technological developments and industry requirements. With
this rulemaking, DHS seeks to create a more flexible definition of
specialty occupation that can be adapted to occupations in new and
emerging fields, such as STEM and AI, by clarifying that a position may
allow for a range of qualifying degree fields. DHS also agrees that it
is important to acknowledge the realities of the workforce and the
evolving demands of specialized roles, accommodate new and emerging
technologies, and be consistent with the dynamic nature of industries.
As proposed and finalized, the definition of specialty occupation will
make it clear that DHS will consider a range of qualifying degree
fields and multiple bodies of highly specialized knowledge when
assessing whether a position is a specialty occupation, and that
`normally'' does not mean ``always'' within the context of the
specialty
[[Page 103065]]
occupation criteria. 88 FR 72870, 72871 (Oct. 23, 2023); new 8 CFR
214.2(h)(4)(ii). The changes made to the definition of specialty
occupation and its criteria are intended to codify existing practices
and, as such, are not expected to create new restrictions on
eligibility or lead to significant changes in adjudications.
In response to stakeholder feedback, DHS is making some revisions
to this final rule compared to the NPRM to better reflect DHS's
original intent when proposing the specialty occupation changes. For
example, DHS is not finalizing the sentence, ``The required specialized
studies must be directly related to the position,'' as this sentence
may have erroneously suggested that DHS would not look beyond the
specialized studies or degree when assessing H-1B eligibility.\25\ To
address commenters' concerns about over-reliance on degree titles, DHS
is removing the references to ``business administration'' and ``liberal
arts'' in the final rule. DHS is also clarifying the level of
connection needed to meet the ``directly related'' requirement by
specifying in the final regulatory text that ``directly related'' means
that there is a logical connection between the required degree, or its
equivalent, and the duties of the position. Further, DHS is adding a
reference to the ``duties of the position'' in the specialty occupation
definition and ``job duties'' in the specialty occupation criteria in
response to comments and to assure stakeholders that this practice has
not changed.
---------------------------------------------------------------------------
\25\ While DHS is not finalizing this particular sentence, this
does not indicate an intent to change current practice with respect
to the ``directly related'' requirement. The ``directly related''
requirement will be finalized elsewhere in the specialty occupation
definition and criteria, consistent with current practice and case
law. See, e.g., Caremax Inc v. Holder, 40 F. Supp. 3d 1182, 1187-88
(N.D. Cal. 2014) (holding that 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).
---------------------------------------------------------------------------
DHS disagrees with comments claiming that the changes to the
specialty occupation provisions are contrary to USCIS's stated
commitment to utilize an individualized framework and allow
adjudicators to discount a beneficiary's coursework, work experience,
and specialized skills. DHS believes that these commenters have
conflated the issue of whether a position qualifies as a specialty
occupation with the issue of whether a beneficiary is qualified to
perform the specialty occupation. The changes to the specialty
occupation provisions do not impact how USCIS evaluates and will
continue to evaluate a beneficiary's qualifications. See 8 CFR
214.2(h)(4)(iii)(C) and (D). DHS confirms that USCIS will continue to
consider work experience, skills, and courses of study in determining
whether a beneficiary meets the qualifications for a specialty
occupation position. As stated in the NPRM, USCIS will continue to
separately evaluate whether a beneficiary's actual course of study is
directly related to the duties of the position, rather than merely
looking at the title of the degree. USCIS will continue to make
individualized determinations in each case, and 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), (h)(4)(iii)(D). As such, DHS will not
adopt the suggestions to abandon or further amend the regulatory
definition of specialty occupation to specify that ``specialized
coursework and training will be fairly evaluated.'' Such amendments are
unnecessary because of existing regulatory text pertaining to the
beneficiary's qualifications and the other changes finalized in this
rule.
Comment: Multiple commenters specifically discussed alternative
training and certification programs as relevant to ``specialty
occupation'' determinations. For example, a professional association
recommended including alternative training programs, such as
apprenticeships, in the specialty occupation determination, noting that
this approach would better align H-1B rules with the growing importance
of skills-based hiring. Citing a report, the professional association
noted a trend towards ``holistic, well-rounded'' hiring practices
beyond degree attainment. The association concluded that under a
modernized U.S. immigration system, U.S. employers must be able to
assess talent in ways that meet their needs, including by allowing them
to employ nontraditional tactics, such as skills-based hiring and
apprenticeship programs.
Several commenters, including an apprenticeship intermediary
company, trade associations, a large company, and an advocacy group,
expressed a common concern that a company's practice of hiring
registered apprentices for entry-level positions could jeopardize its
ability to obtain H-1B visas for related positions. The commenters
wrote that ambiguity around current H-1B program requirements has
deterred companies from participating in or initiating apprenticeship
programs. The commenters acknowledged the NPRM's efforts to address
this concern, including by clarifying the meaning of ``normally,'' but
urged DHS to consider additional ways to support employers' efforts to
explore apprenticeship programs. Some of the commenters asked DHS to
clarify in the rule that the presence of an apprenticeship program in
an occupation or the employment practices of a petitioner should not be
taken as evidence that an occupation or employer does not normally
require a degree in a specific specialty, or to establish explicit
protections for companies that have engaged Registered Apprenticeship
programs while also petitioning for H-1B beneficiaries.
Similarly, a few trade associations commended DHS for acknowledging
the flexibility needed in making specialty occupation determinations,
but added that DHS should do more to support skills-based hiring
initiatives. The commenters asked that DHS recognize that an employer
can implement a skills-based hiring program without undermining its
ability to sponsor H-1B beneficiaries for the same or similar roles and
encouraged DHS to consider ways to help employers distinguish skills-
based hiring roles from degreed roles at all points in the employment
ecosystem--from recruitment, onboarding, progression in career, and at
the engagement level, stating that additional clarification will enable
employers to broaden skills-based hiring initiatives while balancing
the H-1B standards. One commenter also encouraged DHS to examine degree
equivalency standards and consider new ways employees obtain needed
skills outside the traditional 4-year degree paradigm, including
employer certificate programs, apprenticeship programs, and college-
level courses. A trade association suggested factoring in other ways
that employers can upskill their workforces, such as certificate
programs, reasoning that in not considering these factors, USCIS
creates obstacles for employers who might otherwise expand skills-based
employment practices.
Response: The revisions to the specialty occupation provisions are
not intended to negatively impact skills-based hiring practices and
alternative training programs. Conversely, several provisions, such as
the new definition of ``normally,'' which clarifies that ``normally''
does not mean ``always,'' are intended to help support these programs
and initiatives. As stated in the NPRM, DHS recognizes that as 21st
[[Page 103066]]
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. 88 FR 72870, 72871 (Oct. 23, 2023). There is
already flexibility inherent in H-1B adjudications that allows
employers to explore where skills-based hiring is sensible. By
definition, a specialty occupation is one which requires attainment of
a bachelor's or higher degree ``or its equivalent.'' The allowance for
the ``equivalent'' of a degree in a specific specialty recognizes that
the requisite level of knowledge for a particular beneficiary may be
gained through, among other things, additional coursework or training
as suggested by the commenter. Further, the existing regulations at 8
CFR 214.2(h)(4)(iii)(C)(4), (h)(4)(iii)(D)--which are not being changed
in this final rule--already allow USCIS to examine degree equivalency
standards and consider a worker's training, experience, and skills
outside of the traditional 4-year degree paradigm. DHS believes the
finalized regulatory text is sufficiently flexible to allow employers
to explore where skills-based hiring, apprenticeships, and alternative
training programs are sensible, and declines to make the suggested
regulatory text changes to specifically reference apprenticeships and
training programs.
Comment: A few commenters voiced concern that the proposed
specialty occupation provisions conflict with the INA. A form letter
campaign said that DHS should not adopt the proposed revisions to the
definition and criteria for ``specialty occupation,'' arguing that they
conflict with the plain language of the statute and are based on a
rescinded Executive order from the prior administration. A professional
association and an individual commenter said they were disappointed to
see DHS ``recycle'' the same language from the 2020 interim final rule
(IFR) ``Strengthening the H-1B Nonimmigrant Visa Classification
Program,'' 85 FR 63918 (Oct. 8. 2020). Some commenters, including an
advocacy group, said that these changes attempt to ``revive'' or
``resurrect'' invalidated guidance and rules from a prior
administration. The advocacy group referenced an attorney's argument
from a lawsuit against the 2020 IFR, which was later blocked by courts,
and claimed that the NPRM copied the prior rule's restrictive language
which is inconsistent with the INA and current USCIS practice.
Response: DHS does not agree that the revisions to the definition
and criteria for specialty occupation conflict with the plain language
of the statute. As explained in the NPRM, the revised regulatory
definition and standards for ``specialty occupation'' will better align
the regulation with the statutory definition of that term. 88 FR 72870,
728714 (Oct. 23, 2023). For example, in determining whether a position
is a specialty occupation, USCIS 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). Therefore, clarifying
the definition of specialty occupation to state that ``each . . .
qualifying degree field is directly related to the duties of the
position'' more closely aligns the regulatory text with the statutory
definition.\26\
---------------------------------------------------------------------------
\26\ See Vision Builders, LLC v. USCIS, No. 19-CV-3159, 2020 WL
5891546, at *4 (D.D.C. Oct. 5, 2020) (finding that USCIS logically
read the regulatory criteria together with the statutory definition
of specialty occupation ``to find that the term `degree' in the
specialty-occupation criteria, 8 CFR 214.2(h)(4)(iii)(A), means one
`in a specific specialty that is directly related to the proffered
position.' '').
---------------------------------------------------------------------------
Nor does DHS agree that the changes to the definition of and
criteria for ``specialty occupation'' are based on a rescinded
Executive order or the 2020 IFR. While some of the changes finalized
here are similar to changes attempted through the 2020 IFR, neither
this rule nor the IFR relied on a rescinded Executive order as
authority for the changes. Rather, the IFR, similar to this rule,
explained that the changes to the definition and criteria for specialty
occupation were based on the INA and longstanding agency practice.\27\
Further, there are some notable changes in the specialty occupation
provisions finalized in this rule compared to those in the IFR, such as
the addition and clarification of the word ``normally'' to the
specialty occupation criteria and clarifying that a position may allow
for a range of qualifying degree fields.
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\27\ ``Strengthening the H-1B Nonimmigrant Visa Classification
Program,'' 85 FR 63918, 63925 (Oct. 8. 2020) (noting that the
requirement of a ``direct relationship'' between the required degree
fields and duties of the position was ``consistent with the
statutory requirement that a degree be ``in the specific specialty''
and has long been the position of DHS and its predecessor,
Immigration and Naturalization Service (INS)'').
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DHS also disagrees that the specialty occupation changes seek to
``revive invalidated guidance and rules.'' In June 2020, USCIS
rescinded two policy memoranda that impacted certain computer
occupations.\28\ In February 2021, USCIS rescinded a 2017 policy
memorandum relating to the December 22, 2000 guidance memo on H-1B
computer-related positions.\29\ These memoranda remain rescinded. In
fact, the other changes to the specialty occupation provisions,
including the clarification that ``normally does not mean always,'' are
consistent with USCIS' rescission of those prior policy memoranda.
---------------------------------------------------------------------------
\28\ USCIS, Policy Memorandum PM-602-0114, Recission of Policy
Memoranda, <a href="https://www.uscis.gov/sites/default/files/document/memos/PM-602-0114_ITServeMemo.pdf">https://www.uscis.gov/sites/default/files/document/memos/PM-602-0114_ITServeMemo.pdf</a> (June 17, 2020).
\29\ USCIS, Policy Memorandum PM-602-0142.1, Rescission of 2017
Policy Memorandum PM-602-0142, <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).
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Comment: A trade association, citing the Executive Order on the
Safe, Secure, and Trustworthy Development and Use of Artificial
Intelligence \30\ and Executive Order 13932, Modernizing and Reforming
the Assessment and Hiring of Federal Job Candidates,\31\ stated that
several of the proposals relating to specialty occupation in the NPRM
contradict executive branch policy directives to increase access to
international talent by ``modernizing and streamlining visa criteria,
interviews, and reviews'' and to give increasing preference and support
to skills-based hiring. The association expressed concern that the
proposed rule, including the specialty occupation definitions and
requirements, would limit access to H-1B visas.
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\30\ Executive Order 14110, Safe, Secure, and Trustworthy
Development and Use of Artificial Intelligence, 88 FR 75191 (Oct.
30, 2023).
\31\ Executive Order 13932, Modernizing and Reforming the
Assessment and Hiring of Federal Job Candidates, 85 FR 39457 (June
26, 2020).
---------------------------------------------------------------------------
Response: DHS is cognizant of the goals of the Executive Order on
the Safe, Secure, and Trustworthy Development and Use of Artificial
Intelligence and has taken a number of actions consistent with the
executive order. These not only include publishing new web page content
for noncitizen STEM professionals and entrepreneurs with guidance on
both the nonimmigrant and immigrant options to work in the United
[[Page 103067]]
States, but also publishing updated policy guidance for the O-1A
nonimmigrant classification for persons of extraordinary ability, the
EB-1 extraordinary ability and outstanding professor or researcher
immigrant classifications, EB-2 national interest waivers for advanced
degree professionals or persons of exceptional ability, and the
International Entrepreneur Parole.\32\ The changes to specialty
occupation finalized in this rule will also further the goals of the
Executive order to ``attract and retain talent in AI and other critical
and emerging technologies in the United States economy'' by clarifying
that ``normally'' does not mean ``always'' within the criteria for a
specialty occupation; clarifying that a position may allow for a range
of qualifying degree fields, although there must be a direct
relationship between the required field(s) and the duties of the
position; and clarifying that ``directly related'' means a logical
connection between the required degree (or its equivalent) and the
duties of the position. These changes better align the regulatory
definition of specialty occupation with the statutory definition of
that term, and provide greater certainty by codifying current policy
and practice into the regulation. Beyond the changes to specialty
occupation, other provisions in this final rule also support the goals
of the executive order, including the provisions relating to cap-
exemption and the provisions relating to beneficiary-owners. Therefore,
DHS disagrees that the changes in this final rule contradict executive
branch policy directives.
---------------------------------------------------------------------------
\32\ See USCIS, Options for Noncitizen STEM Professionals to
Work in the United States (last updated Aug. 27, 2024), <a href="https://www.uscis.gov/working-in-the-united-states/options-for-noncitizen-stem-professionals-to-work-in-the-united-states">https://www.uscis.gov/working-in-the-united-states/options-for-noncitizen-stem-professionals-to-work-in-the-united-states</a>; USCIS, Options for
Noncitizen Entrepreneurs to Work in the United States (last updated
Aug. 27, 2024), <a href="https://www.uscis.gov/working-in-the-united-states/options-for-noncitizen-entrepreneurs-to-work-in-the-united-states">https://www.uscis.gov/working-in-the-united-states/options-for-noncitizen-entrepreneurs-to-work-in-the-united-states</a>;
USCIS, Policy Alert, O-1 Nonimmigrant Status for Persons of
Extraordinary Ability or Achievement (Jan. 21, 2022), <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220121-ExtraordinaryAbility.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220121-ExtraordinaryAbility.pdf</a>; USCIS, Policy Alert, Evaluating
Eligibility for Extraordinary Ability and Outstanding Researcher
Visa Classifications, Sept. 12, 2023, <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230912-ExtraordinaryAbilityOutstandingProfessor.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230912-ExtraordinaryAbilityOutstandingProfessor.pdf</a>; USCIS, International
Entrepreneur Rule (last updated Oct. 11, 2024), <a href="https://www.uscis.gov/working-in-the-united-states/international-entrepreneur-rule">https://www.uscis.gov/working-in-the-united-states/international-entrepreneur-rule</a>; USCIS Policy Alert, International Entrepreneur
Parole, Mar. 10, 2023, <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230310-InternationalEntrepreneurParole.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230310-InternationalEntrepreneurParole.pdf</a>.
---------------------------------------------------------------------------
Comment: A few commenters expressed concerns about administrative
burdens resulting from the proposed changes to ``specialty
occupation.'' For example, a form letter campaign said that the
proposed revisions to the definition and criteria for ``specialty
occupation'' add unnecessary burdens for employers. A couple of
commenters wrote that the broad application of specialty occupation
could lead adjudicators to overlook skills and experience, resulting in
more RFEs. An advocacy group commented that the proposal could lead to
unreasonable denials of H-1B visas and burdensome RFEs. A trade
association agreed, adding that issuances of notices of intent to deny
(NOIDs) would also increase administrative difficulties. Another
commenter wrote that the proposed changes to ``specialty occupation''
would incentivize USCIS examiners to issue RFEs, creating burdens for
employers.
Response: DHS disagrees that amending the definition of specialty
occupation will add administrative burdens for employers. As discussed
in the NPRM, these changes are largely a codification of existing
policies and practice. 88 FR 72870, 72874 (Oct. 23, 2023). For example,
it is the current practice of USCIS to require the petitioner to
demonstrate that the required degree field(s) are directly related, as
defined in this rule, to the duties of the position.\33\ DHS does not
expect that there will be an increase in RFEs or NOIDS as a result of
codifying existing USCIS practices and providing clarification with
respect to the definition of and criteria for a specialty occupation.
It is also the current practice for USCIS to examine skills and
experience in the course of determining a beneficiary's qualifications,
and nothing in this rule changes this current practice. USCIS does not
anticipate that these clarifications will cause changes for petitioners
or add an administrative burden. Rather, codifying current practices
adds transparency to the adjudication process and should help to
prevent unnecessary evidence requests and delays.
---------------------------------------------------------------------------
\33\ See, e.g., Madkudu Inc. v. USCIS, No. 5:20-cv-2653-SVK
(N.D. Cal. 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 . . ., 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/legaldocs/Madkudu-settlement-agreement.pdf">https://www.uscis.gov/sites/default/files/document/legaldocs/Madkudu-settlement-agreement.pdf</a> (last visited Oct. 23, 2024).
---------------------------------------------------------------------------
Comment: Numerous commenters expressed concern about the potential
negative economic impacts associated with the specialty occupation
provisions. For instance, a joint submission reasoned that the proposed
specialty occupation provisions could limit the available talent pool
and negatively impact the innovation ecosystem by imposing more
stringent degree requirements. Another commenter similarly wrote that
letting the ``specialty occupation'' assessment be determined by the
semantics of a degree specialization would hinder innovation, research,
and business growth. The commenter said that the modern job market and
education system have allowed for fluid specialties and learning
opportunities, and the ``disruptive rate of technological advancement''
has changed the talent pool such that being an expert in one field
leads one to become an expert in another.
Several commenters commented that the proposal could negatively
impact industries' access to talent in emerging STEM fields, as multi-
disciplinary educational backgrounds are common in these settings. An
advocacy group referenced an attorney's argument that ``the narrowing
of eligibility'' for specialty occupations would impact research
positions in ``burgeoning cross-disciplinary fields.'' A professional
association expressed concern with the ``cross-cutting impact'' of the
proposed regulatory changes to 8 CFR 214.2(h)(4)(ii) and (iii),
particularly on the science and technology sectors, which the commenter
regarded as critical research areas for U.S. economic competitiveness
and national security. A business association and a trade association
commented that negative impacts to businesses' hiring would also
contravene the administration's goals to strengthen the U.S. workforce
and, in particular, to attract professionals in the AI field.
Additionally, other commenters said the provision would not adequately
deal with changes in technology, and could harm individuals in IT who
contribute to the economy but have non-IT bachelor's degrees.
Response: DHS disagrees that codifying existing USCIS practices by
revising the regulatory definition and standards for a ``specialty
occupation'' to better align with the statutory definition of that term
will have a negative effect on the economy or will hinder innovation,
research, or business growth. DHS also disagrees that this provision
will have a negative effect on various industries in the technology and
[[Page 103068]]
science sectors or limit these industries' access to talent trained in
emerging STEM fields or possessing multi-disciplinary educational
backgrounds. In clarifying the specialty occupation definition and
criteria, DHS aims to add transparency and predictability to the
adjudication process, not to impose more stringent degree requirements
or standards. Overall, the changes to the specialty occupation
provisions as revised from the proposed regulatory language--including
clarifying the word ``normally,'' and codifying current practice to
allow for a range of qualifying degree fields--recognize that there is
``flexibility inherent in H-1B adjudications'' \34\ to accommodate
emerging technological developments.
---------------------------------------------------------------------------
\34\ See 88 FR 72870, 72871 (Oct. 23, 2023).
---------------------------------------------------------------------------
Comment: Some commenters noted concerns across industries that the
proposed changes to the specialty occupation definition and criteria
would create uncertainty for H-1B professionals and their dependent
family members, international students at U.S. higher education
institutions, and employers both in academia and industry. The
commenters cited to DOL permanent labor certification (PERM) data from
FYs 2019 to 2023 showing that a sizeable percentage of H-1B holders
with employers sponsoring them for permanent residence hold jobs that
USCIS has ``confirmed are specialty occupations'' where: (a) the
minimum requirements are the type of knowledge obtained through
completion of any engineering degree; or (b) they entail job duties for
which a business administration degree is expected. Based on this data,
the commenters concluded that these are among the beneficiaries that
could be ``excluded'' under the proposed regulatory text, belying DHS's
suggestion that it is merely codifying current practice through the
proposed rule. Similarly, an advocacy group referenced the same PERM
application data and stated that over 20 percent of employers seeking a
permanent labor certification accepted either a business, liberal arts,
social studies, or any kind of engineering degree. The commenter noted
that because this data excluded EB-1 and EB-2 National Interest
Waivers, this was likely an undercount; and, as a result, the actual
impact of the proposed change would be larger than implied by the
figures referenced. Based on this data, the group concluded that the
proposed change ``would likely be a major deviation from current policy
of USCIS.''
A union cited data from the 2021 National Survey of College
Graduates and analysis by the National Foundation for American Policy
showing that a notable percentage of U.S.-born individuals and
temporary visa holders working in computer, biology, and mechanical
engineering occupations have a degree other than in computer science or
electrical engineering, health or biological sciences, and mechanical
engineering, respectively. The union further noted a trend in academic
departments and research centers, and in industry alike, to establish a
diverse, interdisciplinary staff team that allows for a broad range of
expertise and skills to pursue research projects and grants that cross
traditional fields. A commenter urged DHS to continue to consider the
combination of education and experience, even if the degree is not in a
directly related field. Referencing the same data and a news article
described above, a commenter said it was concerned with the ``directly
related specific specialty'' requirement.
Response: DHS disagrees that these changes to the specialty
occupation provisions would negatively impact or create uncertainty for
H-1B petitioners, beneficiaries (and their families), and prospective
beneficiaries. As stated in the NPRM and in this final rule, the
changes to the specialty occupation definition and criteria are
intended to capture current USCIS practices. For instance, it is the
current practice for USCIS to examine skills and experience in the
course of determining a beneficiary's qualifications and make
individualized determinations in each case, and nothing in this rule
changes this current practice.
With respect to the comments based upon DOL PERM data, DHS cannot
speak specifically to the accuracy of the conclusions drawn by the
commenters because the commenters did not provide the methodology used
in examining the DOL PERM data. Further, DHS cautions against drawing
broad conclusions about H-1B eligibility based on DOL PERM data, as
such data are for immigrant-based classifications that have different
eligibility criteria than H-1B specialty occupations and may be for
different positions with different minimum requirements. For example,
the commenters' references to positions where ``the minimum
requirements are the type of knowledge obtained through completion of
any engineering degree'' and positions that ``entail job duties for
which a business administration degree is expected'' are unclear and do
not necessarily speak to the degree requirements for the beneficiary's
specialty occupation position nor support the commenters' assertion
that these beneficiaries would be ``negatively impacted'' by the
changes made in this final rule. Finally, DHS notes that the current
practices codified by this rule were in place even during the period
covered by the data reviewed by the commenters (FY2019-FY2023). There
is no reason to think that codification of these practices would result
in different adjudicative outcomes.
Regarding the commenter's concern that data show that workers in
various computer, engineering, and science fields have degrees outside
of these fields, DHS notes that it is USCIS' current practice to
examine whether there is a direct relationship between the qualifying
degree fields and the duties of the position when determining whether
the position is a specialty occupation. This is separate from the
determination of whether a beneficiary qualifies for the proffered
position. As is currently the case, a beneficiary may qualify for the
specialty occupation through a combination of education, training, and/
or work experience. The changes to the specialty occupation provisions
do not impact how USCIS evaluates and will continue to evaluate a
beneficiary's qualifications. See 8 CFR 214.2(h)(4)(iii)(C) and (D).
Comment: Some commenters argued that the NPRM failed to address
reliance interests that would be impacted by the proposed changes to
the specialty occupation definition. For example, one commenter said
the failure to address reliance interests is arbitrary and capricious.
A trade association said that the proposed language would result in
arbitrary and capricious adjudications, cause uncertainty for employers
and beneficiaries, and prevent employers from obtaining needed talent
and cross-training employees. Other commenters added that the rule
would upset the reliance interests of IT consulting companies in
particular and disrupt their ability to fill domestic labor shortages
and meet technology needs.
Response: The finalized specialty occupation definition and
criteria, as slightly modified from the NPRM, codify existing USCIS
adjudication practices. Since these provisions are consistent with
current USCIS practices, DHS does not agree that they will upset
serious reliance interests.
ii. Amending the Definition of ``Specialty Occupation''
Comment: Several commenters provided general comments in support of
the ``directly related'' requirement. For example, a union generally
supported requiring a direct relationship between degrees and
occupations, clarifying that general degrees are insufficient to
support H-1B
[[Page 103069]]
petitions, and placing the burden on H-1B petitioners to demonstrate
the relationship between degrees and occupations. A research
organization wrote that the proposal that each qualifying degree be
directly related to a proffered position is consistent with the INA and
caselaw. A commenter expressed support for requiring a ``direct
relation'' between a beneficiary's education and the occupation.
Similarly, a commenter said that requiring a ``direct correlation''
between the position and degree would ensure a ``more precise match''
of position duties to the skills of candidates. Another commenter
generally stated that stricter scrutiny is required to ensure that
beneficiaries are working in fields matching their skills. Another
commenter generally suggested that the job that an H-1B worker is doing
should be relevant to the degree obtained.
A commenter expressed support for the ``directly related''
requirement, reasoning that it is necessary to ensure that individuals
with specialized skills, such as those with degrees in pharmaceutical
sciences, could work in the United States. The commenter said that the
current ``high intake'' of individuals with undergraduate degrees in
engineering and master's degrees in IT disadvantages these groups and
that the proposed change would help address that disadvantage. Another
commenter similarly stated that the ``directly related'' requirement
would ensure that applicants with a degree that has a direct
relationship to the position would have a chance to become employed,
and that the requirement would regulate the job market and prevent
applicants from trying to obtain an H-1B visa for work that is not
related to their degree. A commenter expressed support for the
``directly related'' requirement, stating that it would ensure that
foreign workers who intentionally choose to pursue a degree that is
related to a specific occupation can fill employment gaps without
disrupting the U.S. job market. The commenter added that the proposed
requirement would further program integrity and ensure the H-1B program
serves its statutory purpose.
Response: DHS agrees that requiring the degree field(s) to be
directly related to the duties of the position is consistent with the
INA and caselaw,\35\ supports program integrity, and continues to
ensure that the H-1B program serves its statutory purpose by providing
a regulatory definition of specialty occupation that is consistent with
the existing standard. While these changes are not intended to benefit
a particular occupation or industry, DHS believes they are generally
beneficial for all petitioners and beneficiaries.
---------------------------------------------------------------------------
\35\ Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir.
2007) (describing ``a degree requirement in a specific specialty''
as ``one that relates directly to the duties and responsibilities of
a particular position''); Caremax Inc. v. Holder, 40 F. Supp. 3d
1182, 1187-88 (N.D. Cal. 2014) (``A position that requires
applicants to have any bachelor's degree, or a bachelor's degree in
a large subset of fields, can hardly be considered specialized.'').
---------------------------------------------------------------------------
Comment: Numerous commenters expressed concern that the proposed
changes would be too restrictive by ignoring that individuals may have
work experience in addition to their degree, and make it difficult for
individuals with experience to qualify for H-1B status. A few
commenters added that the proposed changes could discourage potential
H-1B candidates from contributing their knowledge outside their field
of study, noting that a highly qualified individual may have acquired
skills through job experience outside his/her field of study/degree.
Several commenters expressed concern that the addition of the
``directly related'' requirement could narrow the eligibility of
potential beneficiaries. Specifically, a commenter said that the
proposed requirement could result in individuals with experience in a
given field being deemed ineligible while new college graduates with
degrees in relevant fields to qualify for H-1B status. While commenting
on the impact of the proposed specialty occupation regulations on
highly experienced individuals, a commenter urged DHS to leave the
regulations in their current form.
Several commenters suggested that USCIS also consider work
experience. These included recommendations to consider work experience
as an equivalent to the degree name, and allowing experience as an
alternative to the field of study. A couple of commenters were
concerned that the proposed requirements would not provide sufficient
flexibility for individuals who have acquired skills while on the job.
A trade association and a few other commenters said that the ``directly
related'' requirement would not provide leeway for individuals who are
highly educated but want to change sectors in the middle of their
careers. A commenter said that it understood the rationale behind the
proposed requirement but suggested that USCIS take care in implementing
it, as some individuals ``shine'' in positions not related to their
educational backgrounds. A trade association referenced an example of a
position that required expertise in programming languages but did not
always require a specific degree, which the commenter said would likely
make the position ineligible for H-1B initial approval or renewal,
resulting in the position being sent ``offshore.'' Similarly, another
commenter said that the requirement would ``stifle the diverse
professional growth that fuels innovation,'' potentially diverting
global talent to other destinations, as career flexibility is
``crucial.''
Response: Through this rulemaking, DHS is codifying existing USCIS
practice requiring a direct relationship between the qualifying degree
field(s) and the duties of the position. This is consistent with USCIS'
long-standing practice and interpretation that the ``specific
specialty'' requirement in section 214(i)(1)(B) of the INA, 8 U.S.C.
1184(i)(1)(B), relates 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). DHS disagrees with the comments that these changes are
overly restrictive and that they will negatively impact eligibility,
whether for H-1B beneficiaries who are renewing their status or
potential beneficiaries with specialized experience or skills, because
the specialty occupation determination is separate from the
determination of whether a beneficiary qualifies for the proffered
position.
As discussed above, it is already current practice for USCIS to
examine skills and experience in the course of determining a
beneficiary's qualifications, and nothing in this rule changes this
current practice. USCIS will continue to make individualized
determinations in each case. As explained in the NPRM, USCIS 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).
After carefully considering the comments, DHS is not finalizing the
proposed regulatory text of ``[t]he required specialized studies must
be directly related to the position,'' as this language could be
misread as stating that USCIS would only consider a beneficiary's
specialized studies. The ``directly related'' requirement is, however,
being retained in the definition of ``specialty occupation'' and in the
criteria, as explained in more detail below.
Comment: Several commenters were concerned that the proposed rule
might
[[Page 103070]]
render individuals currently eligible for H-1B classification
ineligible under the new specialty occupation definition and requested
clarification on when or to whom the new definition will apply. A group
of Federal elected officials requested clarification on how the amended
definition of specialty occupation will be implemented consistently
with current practice to ensure that individuals who comply with
current H-1B regulations can remain in compliance under the new
definition. The commenters warned against changing the requirements on
those already granted H-1B status, as such a change would create an
unpredictable adjudication environment and could lead to foreign-born
professionals having to leave the country and U.S. companies losing
employees and talent. The commenters commended the codification of
USCIS' deference policy, and urged DHS to clarify how it will apply its
deference policy when adjudicating H-1B petitions moving forward, given
the proposed rule's amended definition of specialty occupation.
Alternatively, the commenters strongly recommended that, if the new
specialty occupation definition does in fact represent a significant
departure from current practice, any new H-1B eligibility requirements
that result from the proposed rule's new amended definition of
specialty occupation only apply to individuals whose initial H-1B
petitions are filed after the proposed rule is finalized.
Multiple commenters, including a form letter campaign, suggested
that DHS only apply the revised specialty occupation regulations to new
petitions, or not apply the rule to current H-1B holders or extensions.
Similarly, a few commenters articulated concerns about beneficiaries in
the immigrant visa backlog who would no longer be able to continue
their H-1B status, and others noted that it could displace individuals
with H-1B status already in the United States. Several commenters
expressed concern with the potential impact of the requirement on
current H-1B beneficiaries who are already in the United States, in
backlogs, and might experience denials as a result of not having a
degree ``directly related'' to the position. Some commenters requested
clarification about whether these individuals would be excluded from
the application of the proposed requirement.
Response: The changes being finalized in this rule become effective
30 days after this final rule is published in the Federal Register.
They will apply to any H-1B petition filed on or after this date,
whether it is a petition seeking an initial grant of H-1B status or
extension of H-1B status. Commenters did not specify why they think the
changes to the specialty occupation definition and criteria would
result in current H-1B nonimmigrants being unable to continue their H-
1B status or otherwise negatively impact current H-1B nonimmigrants. As
stated previously, the changes to the specialty occupation provisions
codify existing practices; they are not intended or expected to result
in current H-1B nonimmigrants no longer being eligible for H-1B status
based on employment that has already been found to be a specialty
occupation. They also do not narrow or otherwise change the existing
standards for how a beneficiary may qualify for the specialty
occupation through a combination of education, training, and/or work
experience. To the extent there is concern about any changes to
eligibility because of the inclusion of ``directly related'' in the new
regulatory text, the new language added in this final rule further
clarifies that USCIS is not changing eligibility standards for
assessing whether a position is a specialty occupation. Therefore, DHS
does not believe it is necessary to apply this final rule only to H-1B
petitions requesting an initial grant of H-1B status that are filed on
or after the effective date of this rule.
In addition, the codification of the deference policy should allay
some of the commenters' concerns. By codifying the deference policy,
USCIS will continue to defer to prior determinations involving the same
parties and underlying facts, except in case of material error,
material change in circumstances or eligibility requirements, or new
material information adversely impacting eligibility. As stated, H-1B
eligibility requirements, including the requirement to qualify as a
specialty occupation, will apply to any H-1B petition filed on or after
the effective date of this rule. However, DHS emphasizes again that the
revisions to the regulatory language for the definition and criteria
for a specialty occupation do not represent a change in policy, but
rather codify existing adjudication practices and are intended to
provide greater clarity and predictability to petitioners and
beneficiaries. A position previously determined to meet the definition
of a specialty occupation generally should continue to do so and a
beneficiary previously determined to be qualified for such an
occupation generally should remain so qualified, absent material error
or a change in material facts.
To the extent that commenters are worried that current H-1B
beneficiaries who were not eligible for H-1B status in the first place
would no longer be eligible for an extension of status under this final
rule, this is not persuasive. USCIS is not, and has never been,
required to approve a petition ``where eligibility has not been
demonstrated merely because of prior approvals that were erroneous.''
\36\
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\36\ Matter of Church Scientology Int'l, 19 I&N Dec. 593, 597
(Comm'r 1988); accord Ochoa-Castillo v. Carroll, 841 F. App'x 672,
674-75 (5th Cir. 2021).
---------------------------------------------------------------------------
Comment: Several commenters discussed the potential negative impact
of the ``directly related'' requirement on hiring practices, stating
that it would likely ``aggravate'' and extend the hiring process, or
even eliminate the ability of companies to consider employees with
``hands-on'' experience. A joint submission stated that the ``directly
related'' requirement would prevent employers from establishing that an
emerging body of knowledge was acquired through a degree in the
``specific specialty'' or ``its equivalent.'' The commenters stated
that an interdisciplinary approach to hiring is often required to
attain the necessary ``highly specialized knowledge'' associated with a
position although that knowledge might not have a specific field of
study associated with it. A trade association said that because most
employers hire skilled workers based on their coursework and
experience, it would be irrelevant to show a direct relationship
between degree and job duties. Similarly, a commenter said that the
requirement was illogical because there is no longer a relationship
between degrees and job duties.
Some commenters discussed the impact on hiring practices in
specific industries or fields, particularly in fields such as AI and
IT. For instance, commenters stated that it is often ``indispensable''
to hire individuals with ``complementary specialties'' to ``form
diverse, interdisciplinary teams.'' The joint submission added that
employers would face additional hurdles when conducting on-campus
recruitment as a result of the ``directly related'' requirement. A
trade association noted that the specialized expertise required when
hiring for roles that integrate AI across various sectors challenged
USCIS' assumptions regarding the ``direct relevance'' of degrees.
Another commenter stated that employers have trended towards hiring
individuals with degrees and skills from various backgrounds,
specifically for the AI workforce, because they need employees with
industry knowledge,
[[Page 103071]]
not just with the traditionally associated academic background. Other
commenters expressed concern that the proposed requirement would limit
the ability of IT consulting firms to fill certain roles and sponsor
foreign workers, particularly workers with work experience but degrees
in various fields.
A trade association expressed concern with the potential impact of
the proposed changes to the definition of ``specialty occupation'' on
the higher education community. The commenter stated that the proposed
definition could hinder the ability of higher education institutions to
hire faculty in broad departments that might include many
subspecialties. The commenter also said that the proposed change would
negatively impact the pipeline for growth in fields of emerging
technology, education, research, and the economy, and deter students
from studying in the United States. Similarly, another commenter
expressed concern that the proposed requirement could force academic
institutions to narrow their hiring scope, potentially diminishing
their ability to recruit talented employees. Another trade association
said the proposed provision would hinder the ability of educational
institutions to hire faculty because universities organize their
programs by broad disciplines which have departments with
subdisciplines, and, as such, typically hire faculty that have broad
training within a discipline in addition to knowledge across several
subdisciplines.
Response: As stated previously, DHS is codifying existing USCIS
practice that there must be a direct relationship between the required
degree field(s) and the duties of the position. As this is consistent
with current USCIS practice, petitioners generally should not
experience a major shift in hiring due to this rule. The specialty
occupation changes are not intended to disadvantage any particular
industry or occupation, nor any H-1B beneficiaries already authorized
to work in a specialty occupation.
These provisions also should not hinder the ability of companies to
consider employees with experience. USCIS analyzes whether the
proffered position is a specialty occupation (including determining if
there is a direct relationship between the required degree(s) and the
duties of the position) separately from its analysis of a beneficiary's
qualifications. The final regulations will maintain the flexibility of
the H-1B program to adapt to new and emerging technologies, education,
and research fields, and allow companies to recruit talented workers.
As noted in the NPRM, 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), (h)(4)(iii)(D). The changes to codify
the ``directly related'' requirement do not, in any way, preclude
petitioners from recruiting workers to form a diverse,
interdisciplinary team.
Comment: Several commenters expressed concerns that the ``directly
related'' requirement would require an exact match between degree and
occupation titles. A commenter requested removing the ``specifically
related'' term that requires a match between the job title and degree
name. Similarly, a couple of commenters said that there is never a
direct match between degree names and the skills required to perform
the duties of a position. A company stated that the ``directly
related'' section of the proposed rule assumes a level of uniformity in
naming degree fields across colleges and universities that does not
exist. Another commenter stated that it would be ``highly subjective
and dangerous'' to include the requirement, as names of degrees are
``archaic in nature'' compared to current job titles because degree
names do not evolve as fast as certain fields. The commenter said that
this could result in the disqualification of certain individuals
despite their possession of specialized knowledge. A professional
association commented that the proposed definition would impose a
faulty process of matching educational qualifications to occupations,
reasoning that educational qualifications and occupations rarely have
direct matches. The professional association stated that because
colleges and universities have autonomy over naming and criteria,
basing an evaluation on the name of a degree could minimize the
qualifications of knowledgeable graduates. The commenter noted that
these ``matching exercises'' between degrees and occupations would be
arbitrary because they would not reflect the reality of skills required
for positions. Other commenters stated that because the proposal would
allow adjudicators to use their discretion to determine an exact match
between job position and degree, many current H-1B workers might not
meet the new criteria. A company added that adjudicators might look
exclusively for a one-to-one match between the degree listed on a
diploma and the relevant occupation without considering a beneficiary's
underlying studies.
Response: There is no requirement for a direct, exact, or one-to-
one match between the degree field(s) and job titles now, or with
respect to this final rule. DHS acknowledges that degree field names
may change over time and differ between universities and emphasizes
that USCIS does not look merely at the name of the degree field. The
changes to the definition of specialty occupation codify current
practices and do not impose a new requirement for an ``exact match''
between degree field(s) and job titles or otherwise narrow eligibility
for a specialty occupation.
DHS further reiterates that the requirement of a direct
relationship between a degree in a specific specialty, or its
equivalent, and the duties of the position should not be construed as
requiring a singular field of study. As explained in the NPRM, these
changes merely codify existing practices. 88 FR 72870, 72874 (Oct. 23,
2023). In some cases, the direct relationship between the degree
field(s) that would qualify someone for the position and the duties of
the position may not be 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 qualifying degree field(s), 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. Under new 8 CFR 214.2(h)(4)(ii),
as amended, the petitioner will continue to have the burden of
demonstrating that there is a direct relationship between the required
degree in a specific specialty and the duties of the position. DHS is
also adding regulatory text to clarify the level of connection needed
to meet the ``directly related'' requirement.
Comment: A few commenters expressed concern with language in the
NPRM which referred to ``educational credentials by the title of the
degree for expediency.'' Referencing this language, which was contained
in footnote 25 of the NPRM, a professional association and a law firm
stated that USCIS' explanation that the use of degree titles was a
matter of ``expediency'' and that adjudicators would still evaluate the
relationship between the course of study and the duties of the position
was of ``little comfort.'' The commenter reasoned that the proposed
rule does not reflect this clarification or direct
[[Page 103072]]
adjudicators to look at the relationship between the duties of the
position and the course of study, which the commenter stated ``includes
the classes taken, skills and training acquired, and knowledge
obtained.'' An advocacy group similarly expressed concern that, despite
the NPRM's acknowledgment in footnote 25, the ``binding regulation''
fails to conform with current USCIS policy and include correct
references to courses of study and job duties, instead referring to
degree labels and names of positions. An advocacy group and company
stated that USCIS' proposal to disqualify positions that require a
``general degree'' based on the title of the position and degree
program, without further consideration of job duties or course of study
content, would be inconsistent with the agency's acknowledgment in
footnote 25 of the NPRM. Another advocacy group also referenced
footnote 25 and suggested that the clarification be reflected in the
regulatory language.
Response: DHS acknowledges the commenters' concerns about referring
to ``the title of the degree for expediency.'' In recognition that the
title of a degree is not determinative, and to be responsive to these
comments, DHS is not finalizing the phrase ``such as business
administration or liberal arts'' from the proposed regulatory text.
While this rule finalizes the regulatory text stating that, ``A
position is not a specialty occupation if attainment of a general
degree, without further specialization, is sufficient to qualify for
the position,'' the deletion of the specific references to ``business
administration or liberal arts'' signals that USCIS will continue to
separately evaluate whether the beneficiary's actual course of study is
directly related to the duties of the position, and will not merely
look to the title of the degree, consistent with current practice. 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, consistent with current
practice and regulations. See 8 CFR 214.2(h)(4)(iii)(C)(4) and (5).
Comment: Multiple commenters stated that it would be difficult to
show an ``exact correspondence'' between degree fields and occupations
in emerging technical fields, such as AI and cybersecurity. Similarly,
an advocacy group and a law firm said that focusing on degree titles
alone would not account for all of the skills that are needed to work
in new and emerging technology fields. The commenters said that this
could limit employers' ability to fill positions and remain competitive
in the global marketplace. A few commenters further stated that new
occupations or areas of study might be created as a result of
innovation that could lead to an unclear consensus on how to classify a
role or determine what field of study a role might require.
Response: As with any industry, not every position in emerging
fields will meet the definition of a specialty occupation. However, DHS
believes that the specialty occupation provisions codified in this rule
sufficiently accommodate emerging fields, including AI and
cybersecurity. DHS understands that many occupations, including those
in new and emerging fields, may not always have a singular degree
requirement to meet the needs of the position. As stated in 8 CFR
214.2(h)(4)(ii), a position may allow for a range of qualifying degree
fields, provided that each of those fields is directly related to the
duties of the position. The petitioner is not required to show an
``exact correspondence'' between degree field(s) and the occupation. As
finalized in this rule, ``directly related'' means that there is a
logical connection between the degree, or its equivalent, and the
duties of the position. See new 8 CFR 214.2(h)(4)(ii). Furthermore, as
stated above, DHS agrees that the title of a degree is not
determinative. Rather than looking only to the title of the degree,
USCIS will continue to separately evaluate whether the underlying
course of study is directly related to the duties of the position. The
regulatory text, as finalized, offers flexibility to the specialty
occupation determination, including to occupations in emerging fields,
while better aligning with the statutory requirements for a specialty
occupation.
Comment: An advocacy group disputed the NPRM's assertion that an
engineering degree field's title must exactly match the title of an
engineering position for the two to be related. The commenter reasoned
that companies hire individuals with STEM degrees based on the
knowledge and skill sets gained through the STEM programs. A law firm
stated that computer science and computer engineering courses are an
essential component of every engineering field of study. As such, the
commenter suggested that any engineering degree that included computer
science or computer engineering courses be considered ``directly
related'' to a software developer occupation.
Response: Regarding the commenter's concern about employers
accepting engineering degrees, DHS is not suggesting that employers
cannot accept any engineering degree for their positions. Rather, DHS
is clarifying that a petition listing a requirement of any engineering
degree in any field of engineering for a position such as a 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. This is because an 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. If an individual
could qualify for a petitioner's software developer position based on
having a seemingly unrelated engineering degree, then it generally
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.\37\ Similarly, assertions that a
position can be satisfied based on studies in any STEM degree field
would generally indicate that the position does not require a ``body of
highly specialized knowledge'' but, rather, general mathematical or
analytical skills. In such scenarios, 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. The critical element is not the title of the position, but
whether the position requires the theoretical and practical application
of a body of highly specialized knowledge, and the attainment of a
bachelor's or higher degree in the specific specialty, as the minimum
for entry into the occupation as required by the INA.
---------------------------------------------------------------------------
\37\ 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).
---------------------------------------------------------------------------
Comment: Several commenters discussed the proposed ``directly
related'' requirement's relationship with the INA, stating that the
requirement defies the INA because the INA does not include any mention
of the degree being
[[Page 103073]]
``directly related'' to the position. An attorney stated that there
were no ambiguities within the statutory definition of ``specialty
occupation'' that has been in use since 1990 that necessitated the
addition of a ``direct relationship'' element to the definition.
A few commenters stated that the proposed requirement did not
``faithfully interpret'' the INA. A couple of trade associations and a
joint submission stated that the ``directly related'' requirement would
not be in alignment with longstanding USCIS practices. An advocacy
group stated that the requirement that a beneficiary's degree be
related to the position was not equivalent to the ``long-established''
interpretation of the INA, which the commenter said has been focused on
adjudicating H-1B petitions based on skills and knowledge gained from
courses of study and the job duties of the position, not the name of
their degree, or the name of the position.
Another advocacy group referenced an attorney's argument that
expressed concern with the proposed definition of ``specialty
occupation,'' reasoning that there was no requirement in INA sec.
214(i)(1) that specialized studies must be directly related to the
position. The attorney added that while a lawyer would qualify as a
specialty occupation under the proposed language, that INA section
reads more broadly, and as such, a marketing analyst should also
qualify despite the occupation requiring degrees in more diverse
fields. Referencing the same argument, another commenter stated that no
requirement under the INA matches the new definition of specialty
occupation. An advocacy group and another commenter stated that
requiring a degree to be in a ``directly related specific specialty''
was absent from the INA. Another professional association specifically
stated that the ``directly related specific specialty'' standard
rewrote the authorizing statute through regulation by calling for a
precise match between the degree and the occupation that is not found
in statute.
A joint submission expressed opposition to the NPRM's use of the
undefined terms ``specialized studies'' and ``directly related,''
stating that the ``directly related'' requirement would exceed the
statutory authority provided in the definition of a ``specialty
occupation'' in INA sec. 214(i)(1). Specifically, the commenters stated
that Congress created the ``body of highly specialized knowledge''
requirement when defining the H-1B category, and when doing so, also
limited the fields of study that comprise the ``specific specialty'' or
its ``equivalent.'' The commenters said that in practice, occupations
that do not have degrees typically associated with them instead accept
a variety of different fields of study that all provide the ``highly
specialized knowledge'' required by the occupation.
A trade association and a law firm stated that the ``directly
related'' requirement in the proposed definition of ``specialty
occupation'' exceeds the statutory requirements of the INA.
Specifically, the commenters stated that the INA definition provides a
``substantially broader standard'' by stating that the requirement of a
degree in the specialty or ``its equivalent'' can form the basis of a
specialty occupation. The commenters added that ``equivalent'' was
interpreted by a district court in Tapis Int'l v. INS \38\ to encompass
``various combinations of academic and experience-based training'' and
that it ``defies logic'' to limit the degree requirement of ``specialty
occupation'' to only positions where a specific degree is offered.
Therefore, the commenters stated that Tapis precludes the
``impermissible limitations'' that USCIS seeks to impose through the
``directly related'' requirement in the NPRM and that the statutory
language permits a position to qualify as a specialty occupation when
it requires a non-specialized degree combined with specialized
experience, training, or coursework that is ``the equivalent'' of a
specialized degree. The commenters concluded that the ``directly
related'' standard contradicts the ``clear language of the statute''
and is, thus, ultra vires, impermissible, and must be removed to ensure
that the regulatory language remains consistent with INA sec.
214(i)(1). Similarly, several commenters referenced INA sec. 214(i)(1)
and said that the phrase ``or its equivalent'' broadens the requirement
for a bachelor's degree to also encompass ``not only skill, knowledge,
work experience, or training . . . but also various combinations of
academic and experience-based training,'' and thus an occupation that
requires a generalized degree but also specialized experience or
training should be considered a specialty occupation. Similarly, a
professional association and a law firm stated that the ``directly
related specific specialty'' requirement contradicted the INA,
reasoning that the INA does not specify that a degree must be directly
related to a specific specialty. As such, the commenters stated that
the proposed language ``impermissibly narrows'' the language of
``specialty occupation'' under INA sec. 214(i)(1). Referencing Tapis
Int'l v. INS, the commenters stated that the knowledge and skills
obtained through the degree, not the title of the degree, is what is
important in the consideration of a ``specialty occupation,'' but that
the language of the proposed rule fails to consider the skills that
beneficiaries gain through the attainment of a bachelor's degree and
industry experience. The professional association concluded that the
proposed language would narrow the types of positions that can qualify
as a specialty occupation, including positions currently held by H-1B
workers, potentially nullifying the proposed deference provisions.
---------------------------------------------------------------------------
\38\ 94 F. Supp. 2d 172, 175-76 (D. Mass. 2000).
---------------------------------------------------------------------------
Response: DHS disagrees that the ``directly related'' requirement
is inconsistent with or exceeds the statutory requirements of the INA.
DHS further disagrees that this requirement would be inconsistent with
longstanding USCIS practice. While INA section 214(i)(1) does not
contain the exact phrase ``directly related,'' consonant with INA
section 214(i)(1), USCIS has consistently interpreted the term
``degree'' to mean not just any baccalaureate or higher degree, but one
in a specific specialty that is directly related to the proffered
position. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir.
2007) (describing ``a degree requirement in a specific specialty'' as
``one that relates directly to the duties and responsibilities of a
particular position''). To demonstrate that a job requires the
theoretical and practical application of a body of highly specialized
knowledge as required by INA section 2l4(i)(l), a petitioner must
establish that the position requires the attainment of a bachelor's or
higher degree in a specialized field of study or its equivalent. USCIS
has long required there to be a close correlation between the required
specialized studies and the position.
The ``directly related'' requirement does not mean that a specialty
occupation position cannot accept degrees in a variety of different
fields of study, provided that each field of study provides the
``highly specialized knowledge'' required by the occupation. While the
statutory ``the'' and the regulatory ``a'' are both interpreted to
denote a singular ``specialty,'' this should not be misconstrued with
necessarily requiring a singular academic major or field of study. In
cases where the petitioner lists multiple disparate fields of study as
the minimum entry requirement for a position, the petitioner must
establish how each field of study is in a ``specific specialty'' that
is directly related to the duties and responsibilities of the
[[Page 103074]]
particular position (i.e., the applied body or bodies of highly
specialized knowledge), consistent with the statutory definition.
Further, DHS disagrees that the ``directly related'' requirement
conflicts with Tapis Int'l v. INS.\39\ It appears the commenters have
conflated the issue of a position's qualification as a specialty
occupation with the issue of a beneficiary's qualification for the
position. A beneficiary's credentials to perform a particular job are
relevant only when the job is first found to qualify as a specialty
occupation. Cf. Matter of Michael Hertz Assocs., 19 I&N Dec. 558, 560
(Comm'r 1988) (``The facts of a beneficiary's background only come at
issue after it is found that the position in which the petitioner
intends to employ him falls within [a specialty occupation].'').
---------------------------------------------------------------------------
\39\ In any event, USCIS is not bound to follow the published
decisions of a district court, even in cases arising in the same
judicial district. See, e.g., Matter of Rosales Vargas, 27 I&N Dec.
745, 749 n.7 (BIA 2020); Matter of K-S-, 20 I&N Dec. 715, 718-19
(BIA 1993).
---------------------------------------------------------------------------
Comment: Several commenters discussed USCIS' consideration of
specialized experience, skills, and training in addition to degree
requirements with respect to the ``directly related'' requirement. Many
commenters suggested that rather than focusing on degree titles alone,
USCIS should evaluate potential beneficiaries on their overall
education, including course of study, extracurricular, and skill
development. A couple of commenters suggested that instead of requiring
a ``direct relationship'' between the degree and position, USCIS should
ensure that individuals have the required skill set for the job. Many
commenters stated that the definition should be expanded to include
consideration of direct work experience. Similarly, many commenters
urged DHS to consider adding language that allows USCIS to consider
coursework and ``courses of study,'' along with an employer's
explanation of how a degree is directly related to a position. Another
commenter requested that USCIS clarify that ``courses of study'' are
relevant rather than the degree field, and that ``job duties'' are
relevant rather than the job title of the position. Other commenters
urged USCIS to consider the candidate's certifications as a better
indicator of their skill level instead of relying on the degree
obtained.
A law firm expressed concern that the proposed ``direct
relationship'' requirement might cause adjudicating officers to
exercise ``unintended'' discretion in their willingness to look at the
totality of a beneficiary's educational studies. The commenter
suggested that the Department could codify existing practice and
eliminate future ambiguity by modifying the proposed definition of
``specialty occupation'' to include a provision at the end that states,
``The relatedness of specialized studies may be established through an
evaluation of the coursework (and applications of that coursework) that
comprise the degree.''
Response: DHS is codifying existing USCIS practice that there must
be a direct relationship between the required degree field(s) and the
duties of the position. Codifying the ``direct relationship''
requirement does not impact existing current practices that already
allow for consideration of a beneficiary's coursework, experience, and
skills, which is a separate issue pertaining to a beneficiary's
qualifications for a specialty occupation. As explained above, USCIS
will continue to separately evaluate 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. USCIS also will continue to
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),
(h)(4)(iii)(D).
That said, DHS recognizes that the proposed regulatory text may
have been confusing in some regards and is making some changes to
address these concerns. First, DHS will not finalize the sentence,
``The required specialized studies must be directly related to the
position,'' as this particular sentence may have incorrectly suggested
that USCIS would only look to the degree even when evaluating a
beneficiary's qualifications to perform the specialty occupation
instead of considering a beneficiary's experience, training, and other
pertinent skills.\40\ See new 8 CFR 214.2(h)(4)(ii). DHS is also
deleting references to ``business administration'' and ``liberal arts''
so as to not suggest that degree titles are determinative in the
specialty occupation assessment. See id. DHS is also incorporating
language to refer to the ``duties of the position'' to allay
commenters' concerns about the importance of examining the job duties
of the position in addition to the degree title. Id. Consistent with
current practice, USCIS will continue to separately evaluate 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 continue to 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, DHS is amending the proposed
sentence, ``A position may allow a range of degrees or apply multiple
bodies of highly specialized knowledge, provided that each of those
qualifying degree fields is directly related to the position,'' to
state that ``A position may allow for a range of qualifying degree
fields, provided that each of those fields is directly related to the
duties of the position.'' New 8 CFR 214.2(h)(4)(ii). This revision is
intended to better codify longstanding USCIS practice of interpreting
the degree requirement ``in a specific specialty'' as ``one that
relates directly to the duties and responsibilities of a particular
position.'' \41\ DHS is also adding regulatory text to clarify the
level of connection needed to meet the ``directly related''
requirement.\42\
---------------------------------------------------------------------------
\40\ Not finalizing this sentence, however, does not indicate a
change to deviate from current practice, and the ``directly
related'' requirement will be finalized elsewhere in the specialty
occupation definition and criteria, consistent with current practice
and case law.
\41\ See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st
Cir. 2007) (describing ``a degree requirement in a specific
specialty'' as ``one that relates directly to the duties and
responsibilities of a particular position'').
\42\ See id.
---------------------------------------------------------------------------
Comment: Several commenters asked DHS to clarify the standard for
``directly related,'' or alternatively, recommended that USCIS remove
the ``directly related'' requirement from the ``specialty occupation''
definition altogether. A joint submission expressed concern that the
proposed regulatory text would change adjudications such that the
agency would no longer focus on job duties and courses of study as
required by statute. One commenter suggested that either the Department
issue a supplemental notice withdrawing the ``directly related''
provision from the revised definition of ``specialty occupation,'' or,
at a minimum, that it issue a supplemental notice that ``cur[es] the
specific identified deficiencies'' and provides the public with
adequate time to submit additional comments. Similarly, a legal
services provider stated that while it accepted the requirement that a
degree be ``related'' to the position, the inclusion of ``directly'' as
a qualifier might limit eligibility for H-1B petitions, introduce more
subjectivity among adjudicators, and lead to a rise in RFEs and
denials. As such, the
[[Page 103075]]
commenter concluded that USCIS should remove ``directly'' from the
definition, as maintaining the requirement that a degree be ``related''
would be sufficient.
Some commenters provided alternative language to better clarify the
standard for ``directly related.'' A professional association suggested
that if USCIS were to include a term to dictate the level at which a
degree must be related to the duties of the position, it should use
``rationally related'' instead of ``directly related.'' The commenter
reasoned that the flexibility provided in the term ``rationally
related'' is needed to adapt to today's environment where occupations
for certain specialties require diverse sets of expertise. An attorney
also said that the proposed rule does not precisely define ``direct
relationship.'' Referencing the NPRM's text on page 72875 describing
how petitioners would establish a ``direct relationship,'' the
commenter requested that DHS clarify what ``connection'' means in the
text. Referencing the sentence ``The `specific specialty' requirement
is only met if the degree . . . provides a body of highly specialized
knowledge directly related to the duties and responsibilities of the
particular position'' on page 72875 of the NPRM, a professional
association suggested USCIS replace ``degree'' with ``education'' and
remove the word ``directly'' from the sentence. The commenter stated
that these suggestions would be more consistent with the statutory
definition of ``specialty occupation'' found in INA secs.
101(a)(15)(H)(i)(b) and 214(i)(l).
Response: To provide clarity on the level of connection needed to
meet the ``directly related'' requirement, DHS is adding regulatory
text to state that, `` `[d]irectly related' means that there is a
logical connection between the degree, or its equivalent, and the
duties of the position.'' New 8 CFR 214.2(h)(4)(ii).
Considering this explanation, DHS declines to remove the ``directly
related'' requirement from the specialty occupation definition.
Moreover, the requirement to show that there is a direct relationship
between the required degree in a specific specialty and the duties of
the position is not a new requirement. Rather it is consistent with
USCIS' long-standing practice. This requirement helps maintain program
integrity and DHS believes that reducing this to a lower standard by
removing the ``directly related'' standard altogether could open
loopholes in the program.
Comment: Several commenters discussed the evidentiary requirements
associated with the ``directly related'' requirement for petitioners. A
company said DHS should clarify how an employer can demonstrate the
beneficiary would fill a specialty occupation. Another company urged
DHS to clarify the types of evidence that could be used to establish
how a degree relates to an occupation. A few commenters similarly
stated that the final rule should detail what additional evidence--such
as coursework, transcripts, explanations of job duties, records of
practical training, and credentials--could be submitted to demonstrate
that beneficiaries are sufficiently qualified to complete the duties of
the position. A company stated that the proposed rule provides no
specific detail or criteria related to the level of connection that
would be sufficient to demonstrate a direct relationship between the
required degree field(s) and the duties of the position. The commenter
asked DHS a variety of questions about the information that petitioners
would be required to provide related to core coursework, technical
skills and proficiencies, electives, and other topics. Specifically,
the commenter asked if the connection is established by showing
foundational relevance of coursework to the occupation's duties, or if
it requires connecting a specific set of technical skills and
proficiencies gained from coursework to those used in day-to-day
responsibilities. The commenter further asked if is appropriate to show
coursework in technical skills and proficiencies that are essential
precursors to those used on the job, whether the connection is relevant
only if it involves the core curriculum, or whether electives carry
equal weight. The commenter also asked what percentage of the
beneficiary's coursework must have the requisite connection, and how
much explanation is necessary to properly establish any of these
potential dimensions of connection.
A commenter expressed concern that the proposed requirement would
incentivize USCIS adjudicators to issue additional RFEs, thus
increasing the burden on employers. An attorney expressed similar
concern that the ``direct relationship'' requirement would make the H-
1B program more burdensome and inefficient by creating an additional
evidentiary element. The commenter stated that certain occupations are
open to individuals with various degrees, but that the ``direct
relationship'' requirement would require employers to both show that
the beneficiary possesses a relevant degree and provide documentation
of how each degree field relates to the proposed job. The commenter
said USCIS did not explain how this would increase efficiency or how
employers could meet this requirement. An attorney said that instead of
requiring petitioners to show a ``direct relationship'' between the
degree and duties of the position, USCIS should accept attestations
from employers that a beneficiary's skill set was obtained through
their education. The commenter reasoned that the proposed requirement
would create an additional burden on employers and waste USCIS time by
requiring adjudicators to verify the connection between the job duties
and the degree attained. The commenter concluded that USCIS should keep
the current policy in place or provide more flexibility to employers.
Response: As noted above, DHS is adding regulatory text to clarify
that ``directly related'' means ``a logical connection between the
degree, or its equivalent, and the duties of the position.'' The burden
of proof remains on the petitioner to demonstrate, by a preponderance
of the evidence, a logical connection between the qualifying degree
field(s) and the duties of the position. As in the past, the petitioner
would need to provide information regarding the course(s) of study
associated with the required degree(s) (or its equivalent), and the
duties of the proffered position, and demonstrate the connection
between the course of study and the duties of the position. Relevant
supporting evidence could include, but is not limited to, information
about the established curriculum of courses leading to the specified
degree(s), course descriptions or syllabi, and information explaining
how such a curriculum and coursework is necessary to perform the duties
of the position. DHS reiterates that each petition is reviewed on a
case-by-case basis taking into consideration the totality of the
evidence, and, therefore, DHS will not require any specific type of
evidence or an exact percentage of coursework to establish the
requisite connection.
Commenters also asked whether relevant evidence of whether a
position is a specialty occupation could include transcripts listing
the beneficiary's coursework, records of the beneficiary's practical
training, professional certificates, and other credible evidence
demonstrating the beneficiary's technical skills and proficiencies.
USCIS may consider such evidence relevant if the petitioner were able
to demonstrate that the submitted evidence were representative of the
typical coursework, skills, and/or proficiencies needed to attain the
required degree(s). Generally, however,
[[Page 103076]]
these types of evidence are more relevant to the determination of the
beneficiary's qualification for the offered position, which is a
separate issue from whether the petitioner's offered position qualifies
as a specialty occupation. Further, a general attestation from the
employer that a beneficiary's skill set was obtained through their
education, without any additional evidence, may be insufficient to
establish that a beneficiary is qualified to perform the duties of the
position.
Comment: Several other commenters expressed concern with the
``directly related'' requirement because it would effectively require a
degree in a further ``subspecialty'' (such as chemical engineering)
rather than a degree within a broader specialty field (such as
engineering). The commenters stated that this change would not be
supported by the INA, as the ``directly related'' requirement does not
exist within the statutory text of the INA, as reaffirmed in
InspectionXpert Corp. v. Cuccinelli, 2020 WL 1062821 (M.D.N.C. Mar. 5,
2020). In that case, the commenters stated, the court held that the INA
defines ``professions,'' which are the basis of the specialty
occupation requirement, at the ``categorical level'' rather than the
subspecialty level and ``specifically includes'' that ``an engineering
degree requirement meets the specialty occupation requirement.'' The
commenters said that the proposed rule repeats the same error as the
previous rule, specifically in its treatment of engineering degrees. As
a result, the commenters concluded that the proposed rule conflicts
with the INA. One of the commenters added that the proposed rule's
``caution'' that the ``directly related'' requirement is not construed
as ``requiring a singular field of study'' did not align with
InspectionXpert Corp., as it ``does not cure the error of imposing a
subspecialty requirement in the first place.''
A trade association and a law firm had significant concerns with
the NPRM's discussion of engineering degrees, saying such language was
``impermissibly narrow'' and inconsistent with InspectionXpert Corp.'s
holding ``that the statute does not require specialty occupations to be
subspecialties.'' These commenters urged USCIS to recognize ``the long-
standing practice of allowing employers to build a record to establish
the specialized needs of their positions to qualify as specialty
occupations, including those where the employer believes that the
requirements of a particular position include a number of engineering
degrees or a non-specified engineering degree.''
Response: With this final rule, DHS is adding language to the
definition of ``specialty occupation'' clarifying that the required
specialized studies must be directly related to the position. While
commenters are correct that INA section 214(i), 8 U.S.C. 1184(i), does
not use the term ``directly related,'' the statute does refer to
application of a body of highly specialized knowledge and attainment of
a bachelor's or higher degree in the specific specialty (or its
equivalent) as a minimum for entry into the occupation. DHS 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 equivalent, provides
a body of highly specialized knowledge directly related to the duties
and responsibilities of the particular position as required by INA
214(i)(1)(A). See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st
Cir. 2007) (describing ``a degree requirement in a specific specialty''
as ``one that relates directly to the duties and responsibilities of a
particular position''); Caremax Inc. v. Holder, 40 F. Supp. 3d 1182,
1187-88 (N.D. Cal. 2014) (``A position that requires applicants to have
any bachelor's degree, or a bachelor's degree in a large subset of
fields, can hardly be considered specialized.''). Because an occupation
may involve application of multiple bodies of highly specialized
knowledge, ``specific specialty'' is not limited to one degree field,
or its equivalent, but may include multiple degree fields, or
equivalents, that provide the body of highly specialized knowledge to
be applied when performing the occupation. The requirement that each
degree field, or its equivalent, be directly related to the position is
the best interpretation of the statutory text and consistent with
existing USCIS practice.\43\
---------------------------------------------------------------------------
\43\ See, e.g., Madkudu Inc. v. USCIS, No. 5:20-cv-2653-SVK
(N.D. Cal. 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 . . ., 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 Oct. 23, 2024).
---------------------------------------------------------------------------
DHS does not agree with commenters that the requirement that the
specialized studies must be directly related to the position is
inconsistent with the district court's unpublished decision in
InspectionXpert v. Cuccinelli.\44\ In that case, the court found that
USCIS' interpretation of the term ``degree'' in 8 CFR
214.2(h)(4)(iii)(A)(1) as ``requiring a degree in one singular
subspecialty'' was not entitled to deference. Again, this final rule
revises 8 CFR 214.2(h)(4)(iii)(A)(1) so that it no longer ambiguously
refers to ``a . . . degree'' and codifies that a position may allow for
a range of qualifying degree fields, which is consistent with the
court's holding in InspectionXpert.\45\ DHS acknowledges that the
district court in InspectionXpert also held that ``in contrast to a
liberal arts degree, which the Service deemed ``an [in]appropriate
degree in a profession'' because of its ``broad[ness],'' . . . an
engineering degree requirement meets the specialty occupation degree
requirement.'' \46\ DHS is not suggesting that engineering, or any of
the various fields of engineering, are not specific specialties. Nor is
DHS suggesting that employers could never establish that ``any
engineering degree'' is sufficient to qualify for some positions. But
DHS is revising the regulation to clarify that the petitioner must
establish how each qualifying degree field provides a body of highly
specialized knowledge that is directly related to the position. In some
instances, such as the quality engineer position in InspectionXpert, it
may be that any engineering degree provides the body of highly
specialized knowledge needed to perform the job. But that does not mean
that in all cases, accepting ``any engineering degree'' as sufficient
to qualify for the position would provide a body of highly specialized
knowledge directly related to the duties and responsibilities of the
particular position as required by INA 214(i)(1)(A). Where a petitioner
will accept a range of qualifying degree fields, the petitioner must
establish that each of those fields is directly related to the duties
of the position. This final rule balances the District Court for the
[[Page 103077]]
Middle District of North Carolina's unpublished decision in
InspectionXpert with other court decisions, including those of the
District Court for Northern District of California in Caremax and the
First Circuit Court of Appeals in Royal Siam, to revise the criteria at
8 CFR 214.2(h)(4)(iii)(A) so that it reflects the best interpretation
of the statute and provides greater clarity, transparency, and
predictability for petitioners and USCIS officers.
---------------------------------------------------------------------------
\44\ 2020 WL 1062821 (M.D.N.C. Mar. 5, 2020), report and
recommendation adopted, 2020 WL 3470341 (Mar. 31, 2020).
\45\ InspectionXpert, 2020 WL 1062821, at *26 (noting ``the
Agency's longstanding construction, which recognizes that a position
can qualify as a specialty occupation even if it permits a degree in
more than one academic discipline''), report and recommendation
adopted, 2020 WL 3470341 (Mar. 31, 2020).
\46\ Id.
---------------------------------------------------------------------------
Comment: A commenter stated that additional emphasis should be
given in the final regulation for beneficiaries with degree minors (or
other equivalents) in the subject matter to qualify for H-1B status, as
allowed by the ``Madkudu settlement.'' Specifically, the commenter
expressed concern that the reference to the ``Madkudu settlement'' in
footnote 18 was a negative remark from the settlement agreement. The
commenter concluded that it appeared as if USCIS wanted to ``bury the
implications of Madkudu.''
Response: DHS declines to codify an additional emphasis for degree
minors. However, this does not mean that a minor cannot serve as
further specialization for a general degree or in other circumstances.
As stated in the Madkudu Inc. v. USCIS settlement agreement, 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, 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).\47\ Conversely, if
the petitioner identifies a general degree with an official major,
minor, concentration, or specialization, and establishes how that
general degree plus the major, minor, concentration, or specialization
equates to a bachelor's degree in a specific specialty directly related
to the duties and responsibilities of the position, the position may
qualify as a specialty occupation. Further, DHS is finalizing
regulatory text stating that, ``a position is not a specialty
occupation if attainment of a general degree, without further
specialization, is sufficient to qualify for the position.'' 8 CFR
214.2(h)(4)(ii). As this additional regulatory text is in line with the
Madkudu settlement agreement,\48\ DHS disagrees with the commenter's
allegation that it is ``burying the implications of Madkudu'' or that
further revisions are needed.
---------------------------------------------------------------------------
\47\ See Madkudu Inc. v. USCIS, No. 5:20-cv-2653-SVK (N.D. Cal.
Aug. 20, 2021) Settlement Agreement at 4, <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 Oct. 23, 2024).
\48\ See Madkudu Inc. v. USCIS, No. 5:20-cv-2653-SVK (N.D. Cal.
Aug. 20, 2021) Settlement Agreement at 4, <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 Oct. 23, 2024).
---------------------------------------------------------------------------
Comment: Numerous commenters discussed the ``directly related''
requirement's relationship with E.O. 14110, ``Safe, Secure, and
Trustworthy Development and Use of Artificial Intelligence.'' A
commenter stated that the ``directly related'' requirement was a
``direct violation'' of E.O. 14110, and suggested USCIS needed to
instead expand the definition to achieve the goals of the E.O. A
professional association expressed concern that while the E.O. calls
for ``modernizing immigration pathways for experts in AI,'' the
proposed rule would potentially exclude experts from H-1B eligibility
by focusing on the name of their degree and not the ``sum total of
their courses of study and experience.'' The commenter referenced an
article stating that adjudicators could deny H-1B petitions where the
degree does not match what adjudicators believe is required to perform
the role, but that in ``fast-evolving jobs like those in AI,'' the
requirements to perform the role could change quickly. The professional
association concluded by referencing examples of how these issues
``have already been highlighted in previous litigation involving
similar regulatory proposals.'' A Federal elected official also
expressed concern that the requiring proof that a degree is ``directly
related'' to the duties of a position created unnecessary hurdles for
employers that contradicted trends in hiring across emerging technology
fields, and thus, would contravene the directive of E.O. 14110. Another
commenter added that this provision would deprive the economy of the
AI, technology, and national security talent that E.O. 14110 aimed to
attract.
An advocacy group stated that the proposed language violated E.O.
14110 by limiting what degrees and positions could qualify for
specialty occupations, preventing individuals from working in the
United States, and therefore making it less likely the United States
could remain a top destination for the world's talent. The commenter
stated that the proposed rule could have the ``exact opposite effect''
of E.O. 14110 by allowing adjudicators to deny H-1B petition where the
degree field does not ``precisely match'' what adjudicators believe is
required to perform the role. The commenter added that currently USCIS
often looks at actual coursework rather than the degree field, which
would likely change if the proposed language took effect in its current
form. Similarly, a trade association stated that the ``directly related
specific specialty'' language ran counter to E.O. 14110 and would
encourage adjudicators to deny H-1B petitions where the degree field
does not match what they believe is required to perform the role.
A company stated that the proposed ``directly related'' requirement
would not allow a path for skills or relevant coursework to supplement
what the specific degree title might be missing. The commenter stated
that this seems to run counter to E.O. 14110, as employees seeking to
fill positions in emerging technology, and specifically AI, may not
have a degree with a ``directly related'' name if they have completed
extensive coursework that has resulted in the acquisition of highly
specialized knowledge. A professional association and a joint
submission expressed concern with the ``directly related'' degree
requirement on the basis that it would make it ``less likely, if not
impossible'' for E.O. 14110 to be satisfied. Both commenters also
expressed opposition to the proposed rule's ``cautioning'' to employers
about ``requiring the type of quantitative and problem-solving skills
developed in an engineering degree as unlikely to be `directly related'
to a qualifying H-1B position.'' The joint submission further stated
that because ``emerging technologies change much faster than degree
programs'' and the primary degrees typically required for core AI job
duties are business administration, computer science, engineering,
mathematics, and statistics, the proposed change might result in
individuals who are hired to integrate AI into other fields not having
degrees that adjudicators presume to be ``directly related'' to their
offered position. As a result, the professional association and the
joint submission said the ``directly related'' proposals in both the
definition and criteria would make it difficult for DHS to achieve
section 5.1 of E.O. 14110's goal of attracting and retaining foreign-
born STEM experts working in emerging technologies. A company similarly
stated that the Department's ``insistence'' on a ``direct
relationship'' appeared to contradict the directives of section 5.1 of
E.O. 14110. Another
[[Page 103078]]
commenter expressed concern that adjudicators would deny H-1B petitions
in situations where an individual's degree does not match what the
adjudicators think are the requirements to perform the position. The
company added that because emerging technologies might not yet have a
degree program in existence, the ``direct relationship'' requirement
might create uncertainty for employers in these fields when deciding
whether to sponsor individuals for H-1B status.
Similarly, a law firm stated that the proposed language would make
it more difficult for foreign nationals seeking to be employed in STEM
fields to qualify for an H-1B visa. Specifically, the commenter said
that it was a common industry standard for most occupations in STEM
fields to consider specialized experience or training in addition to a
generalized degree, which would not be permitted under the proposed
rule. The commenter stated that this would undermine the
administration's efforts to attract and retain foreign talent in STEM
fields.
A law firm and another commenter referenced an attorney's argument
that the ``direct-relatedness requirement'' requirement would force the
company to ``elevate form over substance'' and inhibit their company's
recruitment for multi-disciplinary teams, such as those in AI,
resulting in a loss of productivity, creativity, and innovation. The
commenters stated that this outcome would be ``precisely opposite'' of
the administration's goals as stated in E.O. 14110 because they would
restrict an immigration program that would attract global talent in the
AI space. The commenters further stated that the provision was
incompatible with the business model of the IT consulting industry and
would negatively impact American businesses. Similarly, a professional
association stated that the mandate of E.O. 14110 for DHS to update the
H-1B program could be obstructed by the ``direct relationship''
requirement. The commenter concluded that such a requirement would
impede not only the AI initiatives outlined in E.O. 14110 but also
other initiatives needed to ensure ``American competitiveness and
security.'' A business association said that the proposed language
would prevent employers from obtaining needed talent and cross-training
employees and undermine the goal of attracting and retaining talent in
AI and other emerging technologies.
Response: DHS disagrees that requiring a direct relationship
between the required degree field(s) and the duties of the position
would violate E.O. 14110 or create additional hurdles for foreign
nationals seeking to work in the AI or STEM fields. As stated
previously, and further clarified with additional regulatory text in
this final rule, DHS is codifying and clarifying long-standing USCIS
practice. Regarding the specific degrees, the examples in the NPRM
referred to the educational credentials by the title of the degree for
expediency. However, USCIS will continue to make individualized
determinations in each case. Furthermore, this rule does not change
current USCIS practice to examine skills and experience in the course
of determining a beneficiary's qualifications. USCIS will continue to
evaluate 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), (h)(4)(iii)(D).
Comment: Multiple commenters said that the regulatory text
regarding a ``general degree'' would lead USCIS to not evaluate the
actual coursework and other specializations that underlie degrees and
instead exclude many degrees based solely on their titles,
contradicting current USCIS practices. For instance, a multi-
association submission stated that the proposed regulation fails ``to
accurately capture the contours of preexisting agency practices'' and
urged DHS to revise the regulatory text to ensure that adjudicators
``examine the job duties of the position offered by the employer and
the courses completed in a degree-granting program (U.S. baccalaureate
or higher, or equivalent) to confirm that a specific body of knowledge
is required to perform the job duties and that the beneficiary has
attained that body of knowledge.''
A law firm stated that due to specialized concentrations and
relevant coursework, degrees like business administration that might
appear as a ``general degree'' could contain highly specialized
coursework that should be deemed directly related to a position. The
commenter added that there should be explicit guidance recognizing that
specialized knowledge for a specialty occupation is obtained from
coursework, as shown in a transcript, and might not be obvious from the
face of the degree itself. Specifically, the commenter suggested that
DHS allow certain positions to accept and require that ``highly
specialized knowledge'' can be attained from general degrees through
specialized coursework, so long as the knowledge is ``directly
relevant'' to the specific job requirements. Similarly, a law firm
suggested that petitioners be provided the opportunity to establish a
relationship between the duties of the position and the beneficiary's
course of studies or work experience. An advocacy group
[…truncated; see source link]Indexed from Federal Register on December 18, 2024.
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.