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Alert for Employers (and Employees) - Upcoming Proposed Revisions to H-1B Process cover

Alert for Employers (and Employees) - Upcoming Proposed Revisions to H-1B Process

February 26, 2024

Improvements in the H-1B process are under review and while these rules are not yet implemented, the expected alignment with USCIS and employer priorities suggests a relatively swift adoption after the conclusion of the notice-and-comment period. Once the period ends, the draft regulations will undergo final approval by the U.S. Office of Management and Budget.

In Fall 2023, federal immigration authorities released much-anticipated revisions to the H-1B visa process, with the goal of modernizing the nonimmigrant category and address longstanding issues with the annual lottery system. The U.S. Citizenship & Immigration Services (USCIS) issued a notice, initiating a 60-day public comment period for the proposed rule changes. The final regulations are expected to be implemented in the coming months.

Here are the key changes that employers (and job seekers) should be aware of:

  • Cap-Exempt Organizations: The proposed rule expands eligibility for “nonprofit research organizations” and “governmental research organizations,” allowing them to file H-1B cap exempt petitions.
    • What this means for job seekers:  This change aims to provide a wider range of organizations the ability to sponsor H-1B employment without participating in the annual cap lottery, thus opening up the job opportunities for nondomestic workers. To look for specific types of employers who sponsor H-1B visas, download the FrogHire.aiextension, which will search for positions across all five major job seeking websites, filtering through organizations/employers who do/do not sponsor nondomestic worker visas.
  • Clarification of Specialty Occupation Criteria: The rule revises the definition of “specialty occupation” for H-1B purposes, allowing a position to require a range of academic degrees related to the role.
    • What this means for job seekers: This adjustment eliminates potential challenges where USCIS questions petitions listing multiple qualifying degrees, making it easier for applicants with multiple degrees to specify various academic fields in H-1B job requirements.
  • Deference to Prior Approvals: The proposed rule supports previous approvals and seeks to uphold processes that allow USCIS to consider a case approvable if the same candidate/employment was previously approved, with no material changes.
    • What this means for job seekers: This solidifies a policy that was reinstated by the Biden administration, providing stability and reducing the likelihood of future policy shifts.
  • Improvement to Cap-Gap Rules: Addressing the issue of delayed H-1B cap petition adjudications, the new rules extend the cap-gap period from October 1 to April 1.
    • What this means for job seekers:  Eases compliance challenges related to I-9 verification for H-1B employees.
  • Cap Lottery Process: The rule changes the cap registration process, allowing only one beneficiary to be counted, regardless of how many employers register that beneficiary.
    • What this means for job seekers: This promotes a more equitable selection process.

TDLR: Improvements in the H-1B process are under review and while these rules are not yet implemented, the expected alignment with USCIS and employer priorities suggests a relatively swift adoption after the conclusion of the notice-and-comment period. Once the period ends, the draft regulations will undergo final approval by the U.S. Office of Management and Budget.

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