On October 20, 2023, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking (NPRM) that is intended to modernize and improve the efficiency of the H-1B program. This proposal provides for a 60-day comment period ending December 22, 2023. Global Immigration Partners recommends that our clients and all interested parties consider submitting comments addressing the proposal as it may have a material effect on their ability to sponsor H-1B workers in the future. After the comment period closes, USCIS must consider all comments and prepare responses. Then, it must publish its final rule and allow for an effective date at least 30 days from the date of publication. That suggests that the earliest these proposed rules may take effect will be early or Mid-2024, depending on the resources the agency puts into addressing public comments and the extent they change their proposed rules, in response.
Although there are some proposals that would improve the H-1B program, including clarification that a position may require a degree in one or more specialized fields to qualify as a specialty occupation and changes to the H-1B lottery to disincentivize multiple registrations, there are some proposed revisions that would create significant burdens for H-1B petitioners. These include, but are not limited to:
- Bona fide job offer: USCIS will require evidence that, when the petition is filed, the employer has the real and immediate intention to employ the worker in a specialty occupation. This includes a specific engagement available at the time of filing. USCIS is therefore seeking to eliminate speculative employment, where a petitioner files a petition without an immediate need for the worker in hopes of securing work for them in the future. To enforce this, USCIS proposes to change the regulations to expressly allow them to require contracts, expressly including work orders or statements of work between the petitioner and the company that will receive services. While USCIS states it will not limit the approval period based on the period of the work order, this was their practice prior to the ITSERVE Alliance decision in 2020. The proposed change in the regulations to allow the agency to require contracts is intended to fully reverse the ITSERVE Alliance decision. In the proposed regulation, USCIS claims that requiring these documents will not impose any burden on petitioners, but does not appear to address the time nor costs of negotiations to secure otherwise confidential documents, such as agreements between other private companies.
- Third-party placement (codifying Defensor): In connection with specialty occupation, USCIS proposes to codify the 5th Circuit Court of Appeals decision, Defensor v, Meissner. This case held that when USCIS considers whether a H-1B position placed in a staff augmentation role at a client site is in a specialty occupation, the requirement for the position announced by the client is controlling. The return of this standard will impose a burden on petitioners who place their employees at client company locations, since they will be dependent on how the client articulates the requirements for the position. Those requirements may not be presented in the way USCIS demands, and the lack of this evidence could be considered adversely by USCIS when adjudicating H-1B cases. USCIS expressed that this approach would apply when considering a case where the worker is filling a role in a client’s hierarchy, regardless of where the worker was actually physically working.
- Revising the definition of U.S. employer: DHS proposes several changes to the “United States employer” definition at 8 CFR 214.2(h)(4)(ii). First, in place of the employer-employee relationship requirement, DHS proposes to codify the existing requirement that the petitioner has a bona fide job offer for the beneficiary to work in the U.S. Second, DHS proposes to replace the requirement that the petitioner “[e]ngages a person to work within the United States” with the requirement that the petitioner have a legal presence and is amenable to service of process in the U.S. Lastly, the DHS is not planning to change the rule that the petitioner must have a Tax ID number from the IRS.
- LCA corresponds with the petition: DHS is proposing to amend its regulations to expressly state it has the authority to evaluate whether the Labor Condition Application (LCA) filed with an H-1B case is consistent with the petition. They mention that they will evaluate whether the standard occupational classification (SOC), wage, and wage level are consistent with the rest of the petition. This would allow USCIS to question whether a petition has chosen the correct SOC or wage level in a given case. Discrepancies could be a basis for Request for Evidence (RFE) or denial.
- Legal presence and amenable to service of process: DHS proposes to require H-1B employers to have a legal presence in the U.S. and be amenable to service of process. That is, to petition for an H-1B case, the petitioner must be legally present and subject to being sued in the US (i.e., to enforce the H-1B and LCA terms and conditions).
- Site visits: DHS proposes to formally codify its authority to conduct site visits. The proposal includes the express guidance that non-cooperation with USCIS site visits including by end-clients would be a basis for denial or revocation of H-1B cases.
To Submit Comments
The NPRM allows for a 60-day public comment period that will end on December 22, 2023. You may submit comments through Regulations.gov. Please follow the instructions for submitting comments.