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On Dec. 2, 2024, U.S. Citizenship and Immigration Services (USCIS) announced that it received enough H-1B petitions to meet the 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2025. 

USCIS will send non-selection notices to registrants through their petitioners’ online accounts over the next few days. Upon completion of the non-selection notifications, the status for properly submitted registrations that were not selected for the FY 2025 H-1B numerical allocations will show: 

  • Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration. 

USCIS will continue to accept and process the following types of H-1B petitions that are otherwise exempt from the cap:

  • Extend the amount of time a current H-1B worker may remain in the United States; 
  • Change the terms of employment for current H-1B workers; 
  • Allow current H-1B workers to change employers; and 
  • Allow current H-1B workers to work concurrently in additional H-1B positions. 

On July 30, 2024, U.S. Citizenship and Immigration Services (USCIS) announced it would select additional H-1B cap “lottery” registrations to reach its fiscal year (FY) 2025 numerical quota. This second selection round will include registrations that indicated eligibility for the H-1B master’s cap, as well as those registrations that indicated eligibility for the regular H-1B cap. USCIS will not conduct a second selection round for the master’s cap, as sufficient registrations were selected and received to meet the FY 2025 master’s cap numerical allocation.

Annual availability of new H-1B petitions is limited to 85,000 per FY. If USCIS receives more H-1B registrations than available, the agency conducts a random lottery and the petitioners for those selected registrations may proceed to file an H-1B petition within 90 days. Beneficiaries who have earned a U.S. master’s degree or higher may be eligible for the advanced degree exemption called the master’s cap, which sets aside 20,000 registrations for the initial lottery selection. USCIS received 470,342 eligible registrations and selected 120,603 during its FY 2025 H-1B cap registration period in March 2024 and petitions were due by June 30. Once USCIS completes its second selection round and meets the H-1B cap allocation, petitioners will have 90 days to file H-1B petitions for selected registrations.

U.S. Citizenship and Immigration Services (USCIS) announced April 1, 2024, that they had received enough electronic registrations for unique beneficiaries during the initial registration period to reach the fiscal year (FY) 2025 H-1B quota of 65,0000 regular H-1B cap petitions along with 20,000 petitions allotted for the advanced degree exemption (master’s cap).

USCIS has randomly selected enough properly submitted registrations for unique beneficiaries estimated as needed to reach the H-1B cap and has notified all prospective petitioners with selected beneficiaries that they are eligible to file an H-1B cap-subject petition for such beneficiaries.

Registrants’ online accounts will now show either Submitted or Selected for each valid registration:

  • Submitted: The registration has been submitted and is eligible for selection. Even though the initial selection process has been completed, this registration remains eligible for selection in any subsequent selections in the 2025 fiscal year.
  • Selected: Selected to file an H-1B cap petition during the 90-day window of April 1, 2024, through June 30, 2024.

The USCIS announcement also provides reminders of the new form editions, filing fees, and filing locations which took effect April 1, 2024, and which are discussed in our March 29 blog post.

The registration period for the fiscal year (FY) 2025 H-1B cap petitions opened at noon ET March 6, 2024, and will continue to run through noon ET March 22, 2024. Employers seeking to file an H-1B cap-subject petition must electronically register during this period using a U.S. Citizenship and Immigration Services (USCIS) online account. The registration process includes basic information about the prospective petitioner and each beneficiary along with a $10 registration fee for each beneficiary. The registration process for FY 2025 is governed by the final rule published Feb. 2, 2024, which took effect March 4, 2024.

The final rule includes a new beneficiary-centric selection process to ensure all beneficiaries have an equal chance of selection. Under the new process, registrations will be selected by unique beneficiary rather than by registration. As part of the registration process this year, each beneficiary must provide a valid passport that matches the registration details. See our February 2024 blog post for additional information on the new passport expiration requirements.

As with prior years, it is expected that USCIS will receive enough registrations during the registration period to meet the 65,000 H-1B cap, with an additional 20,000 visas available for those who possess a U.S. master’s degree or higher from an accredited U.S. institution. If the cap is reached, USCIS will conduct a random lottery of the registrations it receives following the close of the registration period. Petitioners will receive an electronic notification if their registration has been selected and can move forward with filing the H-1B petition for only those beneficiaries named on the selection notice. 

H-1B cap-subject petitions for those registrations that are selected in the initial drawing can be filed between April 1, 2024, and June 30, 2024. USCIS clarifies in the final rule that requesting an H-1B cap employment start date after Oct. 1 of the relevant fiscal year is permissible. Petitioners that have received H-1B selections will be able to use their USCIS organizational account to electronically file any H-1B petitions that were selected in the process, or they can file a traditional paper filing of the H-1B petition that is sent to USCIS by mail or courier.

Earlier in 2024, the Department of Homeland Security introduced a regulation to reform the H-1B lottery process, shifting from an employer-centric to a beneficiary-centric selection. While this change may improve overall selection rates, high demand for H-1B visas is projected to continue to exceed the available annual 65,000 numeric limit (cap). Employers should therefore be prepared to discuss alternative options for employees who are not selected in this year’s H-1B registration process.

I. H-1B Cap Exemption

To obtain H-1B visa status for an employee, an employer’s H-1B registration must either “win” the H-1B lottery or the employer must qualify for an exemption to the H-1B cap to avoid the lottery. Certain employers are considered exempt from the H-1B cap, including institutions of higher education, non-profit entities related to or affiliated with such educational institutions, and certain non-profit or government research organizations.

An employer subject to the cap may be able to file a cap-exempt H-1B petition if the prospective employee concurrently holds a position with a cap-exempt employer. The cap exemption initially attaches to the H-1B petition filed with the cap-exempt employer, followed by the submission of an H-1B petition by a cap-subject employer that would then be cap-exempt through the noncitizen’s employment by the cap-exempt entity. Regulations limit the validity of the “concurrent” cap-subject petition to the end date indicated on the approved cap-exempt petition and provide for potential revocation of the cap-exempt petition if the employee’s cap-exempt employment ceases before the end date on the concurrent cap-subject petition. There is no minimum weekly number of hours the individual must be employed by the cap-exempt employer in order to qualify for cap exemption based on concurrent employment with that employer; however, the use of “concurrent” employment works best when the intended length of the cap-exempt and cap-subject employment are expected to be about the same.

However, concurrent employment requires careful timing and cooperation between the two employers because cap-exempt employment must continue for the cap-subject employer’s H-1B petition to remain valid.

II. Going Back to School or Receiving More Training

Certain employees whose H-1B registration was not selected in the lottery may opt to continue their academic program or return to school. F-1 student status can provide sufficient U.S. work authorization until the following year’s H-1B lottery, when the employee may have an additional chance for selection.

Optional practical training (OPT) allows students up to one year of post-graduate practical training through employment related to their field of study. Students with a degree in certain STEM fields may be eligible to obtain a two-year STEM OPT extension of work authorization, for a maximum of up to three years of post-graduate work authorization. This employment authorization offers employers a chance to plan a permanent solution or explore other options to retain the employee in the United States. If the employee has exhausted any available OPT or STEM OPT-based work authorization, they may be able to enroll in a new academic program that permits practical training. Curricular Practical Training (CPT) is training related directly to the student’s major area of study and provides work authorization as authorized by the school. However, certain CPT programs may carry significant risks related to maintaining valid immigration status, so the employee should assess this option carefully.

An H-3 trainee visa may be an option for employers with formal structured training programs. Key H-3 requirements include that the training is not available in the person’s home country and the training benefits the H-3 trainee’s career outside of the United States, the H-3 position is not in the normal operation of the business, and the H-3 trainee will not engage in productive employment unless incidental and necessary to the training.

A J-1 trainee visa could be an option if a prospective hire has a degree or professional certificate from a foreign university and has at least one year of prior related work experience, or five years of work experience abroad in their field. Trainees must participate in a structured and guided work-based training program in the field with limited productive employment. However, a J-1 visa may make the visa holder subject to a two-year home residence requirement so it is critical to determine at the outset if this requirement will apply.

III. Country-Specific Visa Options

The United States has created other special work visas for certain foreign nationals through specific trade treaties with individual countries.

The E-3 classification is limited to Australian nationals and while its criteria are similar to those of an H-1B visa, notable distinctions include dual intent, validity period, and application procedures. Present regulations restrict the annual issuance of E-3 visas to 10,500 qualifying foreign workers. The H-1B1 classification closely mirrors the H-1B and E-3 classifications, but it is limited to workers from Chile and Singapore. Compared to an H-1B, it differs significantly in terms of dual intent, validity period, and application procedures. Present regulations cap the annual issuance of H-1B1 visas at 6,800, with 1,400 allocated for Chile and 5,400 for Singapore. The TN nonimmigrant classification allows qualified Canadian and Mexican citizens to temporarily enter the United States for professional business activities. The list of eligible TN visa professions includes accountants, engineers, lawyers, pharmacists, scientists, teachers, and others.

E-1 Treaty Trader and E-2 Treaty Investor visas permit individuals from countries that have specific treaties with the United States to conduct business or invest in a commercial enterprise in the United States. If the employer entity’s ownership shares the same nationality as the employee and their country has a qualifying treaty, an E-1 or E-2 visa may be an option. If an employer is already qualified as a treaty trader or investor, the process primarily involves demonstrating that the offered position requires essential skills or is supervisory/managerial and ensuring the prospective E-1 or E-2 visa holder holds the necessary qualifications. If the employer has not previously qualified, it will also need to demonstrate substantial investment (E-2) or trade principally between the United States and the home country (E-1).

IV. L-1 Intracompany Transferee

An L-1 visa allows companies with an international presence to transfer managers, executives, and specialized knowledge workers from a foreign branch or affiliate to the United States, if the transferring employee worked for the related entity abroad for at least one year in the last three years. If a qualifying corporate relationship exists between the U.S. and foreign companies, among other factors, the company is then also required to demonstrate the specialized knowledge, managerial, or executive positions of the transferring employee both in and outside the United States.

Multinational companies may have the option to develop and implement international rotation programs, allowing talent intended for U.S. roles to gain experience with the company abroad before returning stateside. Hiring a foreign national to work for an affiliated company abroad if they are not selected in the H-1B registration would allow them to build up time toward becoming eligible to return to the United States to work in L-1 status. However, transferring an employee to work for the company abroad triggers additional considerations for the employer to address such as issues related to obtaining foreign residency and work authorization.

V. O-1 Extraordinary Ability Visa

Individuals demonstrating extraordinary ability in business, science, education, art, or athletics may qualify for an O-1A visa. To meet this standard, they must be among the top echelon in their respective fields, demonstrating exceptional achievements. This requires evidence of notable accomplishments such as publications, awards, high salaries, or critical roles in prestigious organizations. In fields such as motion pictures and television (O-1B), a “high level of achievement” is required, demonstrating a degree of skill and recognition significantly above the norm. O-1B could be an option for employees with a background as a graphic designer, video game designer, fashion designer, creative director, or visual effects artist, among others.

In O-1A/B petitions, the individual’s accomplishments must be “recognized in the field through extensive documentation” and hence applying for an O-1 visa is often a long and evidence-intensive process. For students, particularly those pursuing a Ph.D. in the sciences, an O-1 visa can be a viable option if they have a record of original research, publications, awards, and presentations.

VI. Spousal Work Authorization and Other Family-Based Options

In some cases, a foreign national employee may be eligible for U.S. work authorization through their spouse. Derivative spouse status as an L-2S, E-1S, E-2S, J-2, or, in some cases, H-4 could provide employment authorization. E-1S, E-2S, and L-2S status provide work authorization incident to status, while J-2 and eligible H-4 spouses must apply for an EAD before they may start working. If an EAD is required, employers should consider processing times as they can be lengthy.

VII. Immediate Permanent (Green Card) Sponsorship Options

Foreign nationals meeting the criteria for a green card based on EB-1-1 Extraordinary Ability, EB-1-2 Outstanding Professor or Researcher, EB-2 National Interest Waiver, or EB-2 Schedule A I-140 classification, with an available immigrant visa number, may consider filing an I-485 Application to Adjust Status with a concurrent application for employment authorization along with the employer’s immigrant petition. However, most H-1B cap-subject individuals are recent graduates or early in their careers and may not yet meet the eligibility criteria for these classifications. A green card through PERM Labor Certification was previously a feasible alternative to the H-1B cap especially for students eligible for three years of OPT and STEM OPT-based post graduate work authorization, but timing has become challenging due to lengthy Department of Labor processing times and potential visa number shortages.

VIII. A Creative Option: Look Nearshore

If there is no other viable option, the U.S. company could consider partnering with a Canadian firm to retain talent nearshore. Essentially, after the employee’s U.S. work authorization ends, the Canadian company would hire the employee and contract them back to the U.S. company, allowing the employee to work from Canada on a long-term basis.

As U.S. employers prepare to submit their H-1B registrations for USCIS’s FY 2025 H-1B lottery, selection will be by no means guaranteed and contingency planning will continue to remain key to retain foreign talent.

In preparation for the Fiscal Year (FY) 2025 H-1B cap season, U.S. Citizenship and Immigration Services (USCIS) is holding “Tech Talks” to delve into the latest USCIS organizational account updates. In the session held Tuesday, Feb. 20, 2024, USCIS confirmed that registrants for this year’s cap will need to possess a valid, unexpired passport or travel document at the time of registration. This is a new requirement for this year’s cap season. Additionally, employers must provide the beneficiaries’ passport or travel document expiration date, as it is a mandatory piece of information for registration submission.

In the new rule issued by the Department of Homeland Security (DHS) Feb. 2, 2024, DHS explains that the motivation behind requiring a valid passport or travel document at the time of registration is to maintain “[t]he integrity of the new selection process so USCIS can accurately identify each individual beneficiary, and all registrations submitted on their behalf.” 

Potential Issue: Passport Renewal Underway

A concern arises for individuals currently in the process of renewing their passports. This situation could pose a challenge for those who may not have a valid passport during the brief registration window from March 6 (noon Eastern) to March 22 (noon Eastern) because of lengthy passport renewal processing times.

In this case, an employer would not be able to submit a registration for a beneficiary without a valid passport. This is a departure from past practice and a new requirement for the FY 2025 cap season. If employees need to renew expired passports, they should opt for the fastest processing option available from the government agency that issues passports.

DHS also acknowledges that “[w]hile the final passport or travel document requirement could impact individuals who do not yet hold valid passports or travel documents at the time of registration, DHS has determined the described benefits of program integrity outweigh any additional burden to prospective beneficiaries.”

If an employer submits an H-1B registration with a valid passport, but the employee’s passport is renewed before the employer files for an H-1B petition, the employer can include copies of both passports in the petition and must clarify that the passport was renewed or replaced in the petition. An employer may clarify this point in the supplement page of Form I-129, for example. 

Potential Issue: Unable to Renew Passport

In rare cases where employees cannot renew their passports due to unique circumstances in their country, such as those experienced by Venezuelan nationals, employers should enter the expiration date of the employee’s most recently issued passport. 

However, if the validity of a beneficiary’s passport has been officially extended beyond its original expiration date by decree, the extended expiration date must be entered as per the mandate. Additionally, evidence of the mandated passport renewal by decree needs to be uploaded in the evidence section of the registration form.

The next USCIS Tech Talks will be held on the following dates:

On Jan. 30, 2024, U.S. Citizenship and Immigration Services (USCIS) announced a final rule regarding the H-1B cap electronic registration process for fiscal year (FY) 2025. The announcement also included the initial registration period dates for the FY 2025 cap and the launch of an online filing option for H-1B petitioners. The new rule, effective March 4, 2024, is intended to “strengthen the integrity of and reduce the potential for fraud in the H-1B registration process.”

The final rule creates a beneficiary-specific H-1B cap registration selection process. Under this new process, H-1B cap registrations will be selected by beneficiary rather than by company registration, as was the case previously. This is designed to reduce the possibility of a beneficiary gaining an unfair advantage by having multiple employers submit H-1B cap registrations on their behalf. According to USCIS, the new process is aimed to ensure each beneficiary has the same chance of being selected, regardless of the number of registrations that are submitted by employers for the same beneficiary. Beginning with the FY 2025 H-1B cap registration period, employers will be required to provide valid passport information or valid travel document information for each beneficiary. The passport provided must be the one the beneficiary intends to use to enter the United States if issued an H-1B visa while abroad. Each beneficiary may only be registered under one passport or travel document. The H-1B final rule also codifies USCIS’ ability to deny or revoke H-1B petitions where the underlying registration contains a false attestation or is otherwise invalid.

Further, USCIS announced on Jan. 30, 2024, that the initial registration period for the FY 2025 H-1B cap will open at noon EST March 6, 2024, and will run through noon EST March 22, 2024. During this registration period, employers and their representatives must use a USCIS online account to register each beneficiary electronically for the selection process and pay the $10 registration fee for each beneficiary.

In addition, in the new rule, USCIS clarifies that requesting an H-1B cap employment start date after Oct. 1 of the relevant fiscal year is permissible.

USCIS also issued a fee schedule final rule to adjust certain immigration and naturalization benefit request fees for the first time since 2016. This rule with go into effect after this year’s H-1B cap registration period.

The U.S. Department of State (DOS) announced a pilot program to resume domestic visa stamp renewal for qualified H-1B visa applicants who meet certain requirements. The notice of the pilot program was published in the Federal Register Dec. 21, 2023, after clearing review by the White House Office of Information and Regulatory Affairs. The program will open Jan. 29, 2024, and close April 1, 2024, or when all application slots are filled, whichever occurs first. The pilot program will allow certain qualified individuals in H-1B status to receive an H-1B visa stamp in their valid passport in lieu of applying for the visa stamp at a U.S. consulate or embassy abroad.

The program will be open to an initial 20,000 H-1B visa applicants. The program will be limited to eligible foreign nationals who received an H-1B visa stamp from a U.S. consulate in India between Feb. 1, 2021, and Sept. 30, 2021, and foreign nationals who received an H-1B visa stamp from a U.S. consulate in Canada between Jan. 1, 2020, and April 1, 2023. Additionally, applicants must demonstrate that they meet the following criteria:

  • They are the beneficiary of an approved and unexpired H-1B petition;
  • They maintain H-1B status in the United States;
  • Their period of authorized admission in H-1B status has not expired;
  • Their most recent entry into the United States was in H-1B status;
  • They are not subject to a reciprocity fee, based on country of citizenship;
  • They are eligible for a waiver of the in-person visa interview requirement;
  • They do not require a waiver of visa ineligibility;
  • Their prior visa does not include a “clearance received” annotation;
  • They submitted 10 fingerprints to the DOS during a previous visa application; and
  • They intend to reenter the United States in H-1B status after a temporary period abroad.

The pilot program will make 4,000 application slots available weekly on Jan. 29, Feb. 5, Feb. 12, Feb. 19, and Feb. 26, 2024. Eligible applicants may apply online at the Department of State Domestic Renewal webpage by completing a questionnaire to confirm eligibility, and then completing the Form DS-160 electronic nonimmigrant visa application and paying the $205 fee. Once the fee is paid, applicants will receive instructions on the submission of required documents to the DOS. Applications are expected to be processed in six to eight weeks from the date the documents are received.

Other visa categories such as H-4 (dependents of H-1B principal applicants) are not eligible for the domestic renewal program. The DOS noted that processes to adjudicate additional visa categories will continue to develop concurrently with the pilot, but for the time being, only H-1B principal applicants who meet the above criteria are eligible to apply for the domestic visa renewal.

Please join Greenberg Traurig Shareholders Kate Kalmykov and Nataliya Rymer for the next lunch-and-learn. The program will discuss the new H-1B lottery registration process, along with the latest changes implemented by USCIS for the upcoming Fiscal Year 2025 lottery. The program will provide a timeline for employers by which they may structure planning for the H-1B cap process, suggestions for how to appropriately select a workforce for inclusion in the lottery, and alternative visa considerations.

Location:

The lunch-and-learn program will take place in-person at Greenberg Traurig’s NYC office in One Vanderbilt on Tuesday, Jan. 9 at 12 – 2:00 p.m. ET.

RSVP:

To RSVP for the Jan. 9 program, please click here.

This event is part of a series on emerging trends impacting investors and employers. To RSVP to future scheduled Lunch-and-Learn programs, please click here.

On Oct. 23, 2023, the Department of Homeland Security (DHS) announced the Notice of Proposed Rulemaking (NPRM) to amend H-1B regulations. The purpose of the NPRM is threefold: 1) to modernize and improve the efficiency of the H-1B program; 2) to provide greater benefits and flexibilities; and 3) to improve integrity measures. This proposed regulation is open for public comment until Dec. 22, 2023. Comments can be submitted through the Federal eRulemaking Portal, referencing DHS Docket No. USCIS-2023-0005. 

The proposed rule will not take effect until the comment period ends and DHS publishes a final regulation. It is not clear if new provisions will be implemented in time for the upcoming cap registration season in March 2024.

This blog post summarizes the proposal’s key points.

  1. Modernization and Efficiencies

DHS intends to streamline requirements for the H-1B program with the following proposals:

Revisions to the definition of ‘Specialty Occupation.’ U.S. Citizenship and Immigration Services (USCIS) seeks to revise the regulatory definition and standards for a “specialty occupation” by clarifying the following:

  • There must be a direct relationship between the required degree field and the duties of the position.
  • A position will not qualify as an H-1B Specialty Occupation if it solely requires a general degree without further specialization (i.e., business administration, an unspecified quantitative field, or an engineering degree in any field of engineering).
  • Multiple degree fields required will not automatically disqualify the petition, but the petitioner has the burden of proof to explain how those disparate fields of study relate to the job duties.

Amend the Criteria for Specialty Occupation Positions. USCIS seeks to revise the criteria for specialty occupations by clarifying the following in the NPRM:

  • Currently, the regulatory criteria states that a bachelor’s degree is “normally” required for the position. The proposed rulemaking seeks to clarify that “normally” does not mean “always.”
  • Historically the regulations utilized a four-prong analysis to determine whether a position qualified as a specialty occupation. The proposed rule seeks to change this to a three-prong analysis by consolidating the second prong into the fourth.
  • When a beneficiary is staffed at a third party, DHS seeks to add the phrase “or third party if the beneficiary will be staff to that third party.” This change would allow the petitioner to use the third party’s typical requirements to prove specialty occupation.

Amended Petitions. Currently, an H-1B amendment is required when there is a material change in the terms of the H-1B employment, including a change in job duties, change in the worksite location outside the geographic area of employment, change in hours, or other changes that impact the conditions outlined in the underlying approved H-1B petition. The proposed rule seeks to clarify when an amended petition must be filed if there is a change in the worksite location. It also seeks to clarify when an amended or new petition is required for short-term placement of H-1B workers. The NPRM proposes the following: 

  • Any change in worksite location that reflects a material change requires a new petition.
  • A new or amended petition must be filed before the change takes place.
  • An amended or new petition is not required when the beneficiary is going to a non-worksite location to participate in employee development.

Deference. The proposed rule seeks to codify existing deference policy where adjudicators generally should defer to a prior determination involving the same parties and underlying facts if there is no material change. Codifying the deference policy is designed to better ensure consistent adjudications.

Maintenance of Status. According to the proposed rule, evidence of maintenance of status must be included with the initial filing of petitions that request to extend or amend the beneficiary’s stay. The NPRM also clarifies:

  • Petitioners should provide evidence with the initial filing, rather than waiting for a request for evidence.
  • The changes would impact the following employment-based classifications: E-1, E-2, E-3, H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, R-1, and TN nonimmigrants.
  • Such evidence may include paystubs, W-2 forms, quarterly wage reports, tax returns, contracts, and work orders.

Eliminating the Itinerary Requirement for H Programs. The proposed regulation seeks to eliminate the itinerary requirement for H-1B and H-2 petitions, as the information provided in an itinerary is largely duplicative of information already provided in the Labor Condition Application (LCA).

Validity Expires Before Adjudication. DHS proposes to allow H-1B petitions to be approved or have their requested validity period dates extended if USCIS adjudicates and deems the petition approvable after the initially requested validity period end-date, or the period for which eligibility has been established, has passed. This generally would occur if USCIS deemed the petition approvable upon a favorable motion to reopen, motion to reconsider, or appeal.

  1. Benefits and Flexibilities

DHS proposes to modernize the definition of employers who are exempt from the annual statutory limit on H-1B visas and provide further benefits and flexibilities in the regulations. The proposed regulation allows additional flexibility for both beneficiaries and nonprofit and government research organizations.

H-1B Cap Exemptions. The NPRM proposes the following:

  • Replace “primarily engaged” and “primary mission” with “fundamental activity.” Such change would allow flexibility for beneficiaries whose work contributes (but does not predominately further) the qualifying organization’s purpose.
  • Clarify that a qualifying employer can have more than one “fundamental activity.”
  • Change the phrase “the majority of” to “at least half” to permit beneficiaries flexibility 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.
  • Clarify that performing at least 50% of the duties at a qualifying cap-exempt employer does not mean those duties need to be performed physically onsite.
  • Eliminate the requirement that the petitioner must show a direct correlation between the beneficiary’s duties and the essential purpose, mission, objectives, or functions of the qualifying organization.
  • Amend the definition of “nonprofit or tax exempt organizations” and eliminate the requirement to provide an IRS letter demonstrating the petitioner has been approved as a tax exempt organization “for research or educational purposes.” The petition still needs to provide documentation that it meets this requirement, but it does not need to be in the form of an IRS letter.

Automatic Extension of Authorized Employment. DHS proposes to provide flexibilities and address “cap-gap” issues by extending F-1 status and related work authorization until April of the relevant fiscal year. Currently, cap-gap is provided only until Oct. 1 of the relevant fiscal year.

Start Date Flexibility for Certain H-1B Cap-Subject Petitions. DHS also proposes greater flexibility on the requested H-1B employment start date listed on the Form I-129 petition to permit start dates that are after Oct. 1. Specifically:

  • The H-1B petition must be a nonfrivolous filing.
  • The requested start date cannot be more than six months beyond the filing date of the petition.
  • If the H-1B petition with the underlying cap-gap extension is denied before April 1, the cap-gap would end, and the F-1 student would have 60 days to depart the United States or take other action to maintain their status in the country.
  1. Integrity

DHS proposes to address H-1B Cap registration “abuse” by changing the way USCIS selects registrations. Several anti-fraud safeguards would be made to the current registration system to bolster the selection process and reduce the possibility of misuse and “gaming” of the system.

H-1B Registration System. Each beneficiary would have the same chance of being selected, regardless of how many registrations are submitted on their behalf. 

  • DHS proposes to select registrations by unique beneficiary rather than by registrations. Each unique individual would be entered into the selection process once, regardless of how many registrations were submitted on their behalf.
  • Related entities would not be allowed to submit multiple registrations for the same beneficiary.
  • The NPRM seeks to codify USCIS’s authority to deny an H-1B petition, or revoke an approved H-1B petition, if the underlying registration contains a false attestation or is otherwise invalid.

Beneficiary-Centric Selection. Beneficiaries would be allowed to have more than one registration submitted on their behalf, but each beneficiary would be entered in the selection process only once. Thus, if a random selection were necessary, selection would be based on each unique beneficiary, rather than each registration.

  • Previously, registrants have been able to bypass the passport requirement by indicating that they do not have a passport. The proposed regulation would require registrants to have a valid passport at the time of registration.
  • These changes may provide beneficiaries with greater autonomy with respect to their H-1B employment.

Bar on Multiple Registrations Submitted by Related Entities. Currently, DHS does not allow related entities to file multiple petitions for the same beneficiary. The proposed change would also bar related entities from submitting multiple registrations.

Registrations with False Information or that Are Otherwise Invalid. Currently, the regulations state if the petition contains material that is not true and correct, inaccurate, fraudulent, or misrepresents a material fact, the petition is subject to grounds for denial or revocation. DHS seeks to codify those requirements and extend the same requirements to the information provided in the registration. Furthermore, if a petitioner submits more than one registration per beneficiary in the same fiscal year, the proposed regulations will consider all of the registrations to be invalid.

Alternatives Considered. DHS plans to continue using the registration system and will not revert to the old paper-based filing system. Efforts will be made to continue to enhance the registration system, and DHS welcomes public comment on this issue.

Provisions to Ensure Bona Fide Job Offer for a Specialty Occupation Position. The proposed rule would codify USCIS’s authority to request contracts, work orders, or similar evidence to establish the contractual relationship between all parties as well as state the minimum educational requirements to perform the job duties. The rule also seeks to codify the requirement that the petitioner establish that non-speculative employment exists at the time of filing the petition. The NPRM would:

  • Provide USCIS authority to ensure the LCA properly supports and corresponds with the petition.
  • Alter the definition of “United States Employer” and remove the reference to Employer-Employee relationship from the definition.
  • Codify the existing requirement that the petitioner has a bona fide job offer for the beneficiary to work within the United States and add clarification that the bona fide job offer may include “telework, remote work, or other off-site work in the United States.”
  • Add a new requirement that the petitioner has a legal presence in the United States.

Beneficiary-Owners. DHS proposes to clarify that beneficiary-owners may be eligible for H-1B status even when the beneficiary possesses a controlling interest in that petitioner.

  • Conditions would apply when the beneficiary owns more than 50% or has more than 50% of the voting rights of the petitioner. Conditions would not apply if the beneficiary does not own a controlling interest.
  • The beneficiary must perform specialty occupation duties more than 50% of the time and can also perform non-specialty occupation duties that involve owning and operating the business.
  • Validity period of such petitions would be limited to 18 months. Subsequent extensions would not be limited and could be approved for up to three years.

Site Visits. DHS proposes to codify its existing authority to conduct site visits to maintain the integrity of the H-1B system. The NPRM would:

  • Establish consequences for failure to comply with site visits, including denial or revocation of the petition.
  • Clarify that public inspections would include onsite visits, interviews with officials, review of records related to compliance or any records USCIS deems pertinent to the facts related to the petition, as well as interviews with any individual.
  • Clarify that inspections may occur at the petitioner’s headquarters, satellite locations, or any location where the beneficiary will work, including the beneficiary’s home or third-party worksites.

Third Party Placement. DHS proposes to clarify that if an H-1B worker will be placed at a third party’s organization, USCIS will consider the requirements of that third party, and not the petitioner, to determine whether the position is a specialty occupation.