Is the H-1B Program About to Get Better? New Proposed Regulations Could Improve the Odds of Getting Selected in the Lottery.

October 31, 2023
Amanda Rizzo

The Department of Homeland Security (DHS) issued a proposed amendment to the H-1B regulations on October 23, 2023. The changes are meant to modernize and add flexibility to the H-1B program. Alejandro N. Mayorkas, the Secretary of Homeland Security, introduced the changes by stating that “the Biden-Harris Administration’s priority is to attract global talent, reduce undue burdens on employers, and prevent fraud and abuse in the immigration system.” The proposal, if finalized, would significantly improve an individual’s odds of getting selected in the H-1B lottery and make it easier for entrepreneurs to qualify for an H-1B visa, but may also include certain unfavorable provisions, such as more site visits and a stricter definition of “specialty occupation.”

What are the proposed changes?

  • Each individual only gets counted in the H-1B lottery ONCE: Each foreign national would be entered into the H-1B lottery only once, even if they have multiple employers who file registrations on their behalf. Additionally, employers and related companies would be prohibited from submitting multiple registrations for the same foreign national. This change has the potential to cut the registration numbers in half, giving each individual significantly better odds in the lottery.
  • Consistency for H-1B renewals: Adjudicators would defer to a prior approval when no underlying facts have changed at time of a new filing (e.g., same position, same employer, etc.) This would codify USCIS’s existing policy, making the process of filing extensions more predictable.
  • More H-1B cap-exempt opportunities: The rule would expand the scope of organizations exempt from the H-1B lottery. Nonprofit and governmental organizations would be exempt if research is a “fundamental activity” for their organization. Further, beneficiaries may qualify for an exemption if they spend at least half of their work time at a qualifying organization, whether remotely or on-site, even if they are not directly employed by the qualifying organization.
  • Longer “cap-gap” employment authorization: Currently, an F-1 student with an expiring Optional Practical Training (OPT) work authorization document receives an automatic “cap-gap” extension of this work authorization until October 1 if their H-1B was selected in the lottery, and their H-1B petition has been filed timely and remains pending. Due to the agency’s delays, the proposal would automatically extend cap-gap employment to April 1 of the following year in which H-1B status is requested.
  • Eliminating itineraries for off-site work or training: H-1B petitioners would no longer need to include an itinerary for work or training at one or more third-party worksites.
  • Entrepreneurs: The proposal would expand the definition of “employer” to allow a majority owner of a business to qualify for the H-1B, expanding the visa to include entrepreneurs, investors and start-up owners.
  • Changing the definition of “specialty occupation”: H-1B visas are limited to a “specialty occupation,” which is currently defined as an occupation that requires “attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” The proposed rule would narrow this down further to require that the relevant degree be “directly related” to the specific specialty, reviving Trump-era challenges to many H-1Bs. It is likely that this provision would be challenged in federal court, given that it contradicts extensive legal precedent.
  • Consideration of the client’s degree requirements: Interestingly, in cases where employers place H-1B workers at third-party client sites, the agency would consider the normal degree requirements of the third party or end-client, rather than the petitioning employer.
  • Increased site visits: The proposed rule would codify the agency’s ability to conduct site visits at any of the employer’s worksites, including at satellite offices, third-party contractor sites, home offices, etc.

The rule is presently in the proposal stage and is open to public comment until December 22, 2023. DHS may finalize all or portions of the rule by issuing final rules after the comment period ends. DHS has indicated that it plans to prioritize the rule related to allowing only one selection per beneficiary and to finalize it before next year’s H-1B lottery in March 2024. In fact, the agency is already working on a new H-1B electronic registration tool in anticipation of this change. This is welcome news in light of the dire H-1B selection process for the FY2024 lottery this year. If finalized, next year’s H-1B lottery will hopefully result in more selections for legitimate U.S. employers seeking to hire foreign talent.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.

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