USCIS Announces New Rule Aimed at Strengthening H-1B Program
On January 30, 2024, USCIS announced the implementation of a final rule aimed at strengthening the H-1B program and reducing fraud in the H-1B registration process. USCIS had previously announced its intentions to modernize the H-1B program in October 2023. At that time, USCIS was considering modifying the regulatory definition of “specialty occupation,” clarifying the meaning of terms within the statutory criteria, promoting a “skills-first” culture, automatically extending the duration of F-1 status and work authorization for certain OPT and STEM OPT cases, and codifying certain USCIS powers, among several other measures. We wrote about the initial modernization proposal in detail during the notice and comment period last year. If you would like to read more about the collection of potential new H-1B measures and the rationale behind them, please check out our blog post from December 2023.
Although many modifications were under consideration, this new rule will only finalize a few provisions of the modernization proposal at this time. The changes to the H-1B program include:
Creation of beneficiary-centric selection process for registrations
USCIS will select registrations by prioritizing the beneficiary and selecting a unique beneficiary identification rather than a specific employer registration. The unique identifier could be the beneficiary’s passport number or travel document number. Only one passport or travel document is allowed per beneficiary and it must be the one the beneficiary will use to enter the U.S. if they are granted an H-1B visa.
By utilizing a unique beneficiary identification method, USCIS aims to reduce the advantage of submitting multiple registrations for the same individual. This would ensure each individual in the lottery has the same chance of being selected irrespective of the number of registrations submitted on their behalf, thereby enhancing the overall integrity of the selection process.
Codification of start date flexibility for certain petitions
Employers may file petitions that indicate/request an employment start date after October 1 of the relevant fiscal year in certain cases. This applies to situations when multiple selection rounds are required and when the petition filing window closes after October 1.
Petitions still cannot be filed earlier than 6 months before the beneficiary’s services are actually needed.
Addition of greater integrity measures for registration
Codification of USCIS’s power to deny petitions or revoke approvals that are based on fraudulent or invalid registrations.
Codification of USCIS’s power to deny petitions or revoke approvals if the associated fees were declined, not reconciled, disputed, or otherwise deemed invalid after the registration was submitted.
The final rule goes into effect on March 4, 2024.
By enacting this new rule, USCIS hopes to achieve a few key goals, including: increasing integrity in the H-1B program; streamlining the application process; and making H-1B selections more equitable. We are eager to see how the new rule impacts the registration process and we look forward to future rulemaking that will similarly modernize the H-1B program.
This blog article is the opinion of Immigration Law Group LLP and should not be interpreted as legal advice. Should you require legal advice or a more thorough assessment of a specific situation, please contact our office for an appointment or consultation.
Immigration Law Group LLP has served Silicon Valley and the greater San Francisco Bay Area since 2001. Corporations retain us to manage complex corporate immigration matters facing their employees around the world. Whether you require immigrant or non-immigrant services for startups or a large, multi-national enterprise, our team leverages decades of experience as well as innovative case management technology to ensure your company is positioned for success in an ever-changing global marketplace. If you would like to know more, please contact us today at (408) 432-9200.