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DHS Proposed Ruling for the H-1B

08 Nov

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Update Applicable to:

All employers who need a specialty occupation employee and request them via this visa.

What happened?

On October 23, 2023, the Department of Homeland Security (DHS) announced the Notice of Proposed Rulemaking (NPRM) to amend H-1B regulations. This proposed regulation is open for public comment until December 22, 2023, and comments can be submitted through the Federal e-Rulemaking Portal, referencing DHS Docket No. USCIS-2023-0005. 

What do employers need to do?

Employers should review the above resources, as well as the links provided for additional information about the proposed ruling. If an employer desires to submit a comment on the proposed ruling, follow the instructions above. Employers should seek legal counsel if they would like to perform an audit of contracts, policies, and procedures to ensure compliance with the proposed rule. Employers should keep in mind that the final rule is expected to be published in late December or early January. 

What are the details?

The H-1B visa program is a nonimmigrant classification that applies to people who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability. It also allows employers to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.

H-1B specialty occupations may include fields such as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts. For the H-1B Specialty Occupations.

The Department of Homeland Security (DHS) will soon be issuing a new proposed rule that aims to modernize H-1B Requirements, Oversight, and Flexibility in the F-1 Program. The abstract of the proposed rule indicates some propositions as follows:

  1. Revision to the definition of Specialty Occupation: codifies existing USCIS practice that there must be a direct relationship between the required degree field(s) and the duties of the position AND that there may be more than one acceptable degree field for a specialty occupation.
  2. Clarifies the Criteria for Specialty Occupation Positions: the regulatory requirement that a bachelor’s degree in a specific set of fields must NORMALLY be a requirement for the position. Normally DOES NOT mean “ALWAYS.
  3. Third-party Staffing: will allow a petitioner to use third parties’ typical requirements to prove a specialty occupation.
  4. Clarification on when an amended petition is required: besides the current situations that require an amendment such as a change in job duties, worksite location outside the geographic area of employment, change in hours, or other changes that impact the conditions outlined in the underlying approved petition, the DHS proposes that (1) any change in worksite location that reflects a material change requires a new petition, (2) a petition (new or amended) must be filled BEFORE the change takes place and (3) if the beneficiary is going to a non-worksite location, a new or amended petition is not required.
  5. Expansion of Quota Exemptions: some clarifications include as follows:
    1. Fundamental activity: will replace “primarily engaged and primary mission,” allowing flexibility for beneficiaries. Nonprofit research organization and government research organization definitions will be expanded by incorporating this change in definition.
    1. Phrase “at least half”: will replace “the majority of,” allowing beneficiaries to qualify for cap-exempt status if they spend 50% of their time performing job duties at a qualifying research organization and 50% at a cap-exempt employer.
    1. Revise H-1B beneficiaries’ exemptions: beneficiaries of the visa can qualify for an exemption when they are not directly employed by a qualifying cap-exempt organization but still provide essential work, even if their duties do not necessarily directly further the organization’s essential purpose. 

The proposed rule will not take effect until the comment period ends and DHS publishes a final regulation, which has a 60-day notice and comment period.

For leaving comments for the proposed DHS ruling, visit the following page: Link.

For more information, please see the links below:

Law Firm Articles: Article 1, Article 2, Article 3, Article 4, Article 5

USCIS H-1B Specialty Occupations Page

DHS Notice of Proposed Rulemaking (NPRM)

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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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