New H-1B Rule Would Amend Eligibility Criteria, Address Registration Fraud

​Today, U.S. Citizenship and Immigration Services (USCIS) published a Notice of Proposed Rulemaking that aims to revise the educational eligibility criteria for the H-1B visa program, clarify when employers must amend petitions due to changes in employment, address the recent evidence of fraud in the H-1B cap registration process, and codify the agency's site visit inspection program, among other proposed measures.

Secretary of Homeland Security Alejandro Mayorkas said the regulations will increase efficiency and improve processes for employers and workers. "The Biden-Harris administration's priority is to attract global talent, reduce undue burdens on employers, and prevent fraud and abuse in the immigration system," he said.

The H-1B visa program allows U.S. employers to temporarily employ foreign workers in occupations that typically require a bachelor's or higher degree in a specific specialty, or its equivalent.

USCIS said that more than one final rule may come out of this proposal, with the anti-fraud provisions related to the H-1B cap registration process likely to be issued before next year's process begins in early 2024.

The public will have 60 days to submit comments on the proposal.

A New Approach to Lottery Selection

The proposed rule would change how USCIS conducts the H-1B registration selection process to reduce the possibility of misuse and fraud. Under the current process, the more registrations that employers submit on behalf of an individual, the higher chance that individual will be selected in the lottery. Under the new proposal, each unique person who has a registration submitted on their behalf would be entered into the selection process once, regardless of the number of registrations submitted for them. This would improve the chances that a legitimate registration would be selected and eliminate the practice of submitting multiple registrations for the same worker to increase the chances of selection.

Additional program changes include:

*Redefining the educational criteria to qualify for H-1B status, clarifying that a position may allow a range of degrees but there must be a direct relationship between the degree fields and the duties of the job, and that a general degree is insufficient to qualify.

In the rule, USCIS mentioned the skills-first hiring movement and that the new criteria will allow "employers to explore where skills-based hiring is sensible."

*Clarifying when an amended or new petition must be filed due to a change in an H-1B worker's place of employment. Specifically, the rule would clarify that any change of work location that requires a new labor condition application is considered a material change and therefore requires the petitioning employer to file an amended or new petition with USCIS before the worker may perform work in the new location.

*Clarifying that if an H-1B worker will be redirected to a third party, the actual work to be performed with the third party is most relevant when determining whether the position qualifies for H-1B status.

*Providing a longer protection period for F-1 students who are changing status to H-1B. The proposal seeks to provide up to an additional six months of status and employment authorization to help qualifying F-1 status holders avoid lapses in status and work authorization while awaiting a change to H-1B status.

*Codifying the agency's long-standing practice of requesting contracts and other evidence that a bona fide job offer exists for each H-1B beneficiary, but eliminating the itinerary requirement for an H-1B petition.

*Codifying the agency's deference policy to state that if there has been no material change in the underlying facts, adjudicators generally should defer to a prior determination. This clarification is in reference to a Trump-era policy in which adjudicators were directed to reconsider the facts of each case as if they were new, a practice that led to more scrutiny and requests for evidence.

Site Visits

USCIS intends to further clarify that refusal to comply with inspection site visits may result in denial or revocation of the petition.

"Site visits are important to maintaining the integrity of the H-1B program and in detecting and deterring fraud and noncompliance with H-1B program requirements," the agency said.

"Cooperation is crucial to USCIS's ability to verify information about employers and workers, and the overall conditions of employment."

The proposed regulations would make clear that inspections may include an onsite visit of the petitioning organization's facilities, interviews with its officials, review of its records related to compliance with immigration laws and regulations, and interviews with any other individuals or review of any other records that USCIS may lawfully obtain and that it considers pertinent to verify facts related to the petition.

"The site visits conducted by USCIS through its compliance review program have uncovered a significant amount of noncompliance in the H-1B program," the agency said.