US Citizenship and Immigration Services published a Notice of Proposed Rulemaking aimed at changing the H-1B registration selection process to reduce fraud and improve flexibility, among other updates. 

H-1Bs are temporary, nonimmigrant visas for foreign workers with at least a bachelor’s degree, and they often go to technology workers. Currently, the number of H-1B visas is limited to 65,000 each year, although there are an additional 20,000 available to workers who have a master’s degree or higher from a US university. 

“DHS continues to develop and implement regulations that increase efficiency and improve processes for employers and workers navigating the immigration system,” Secretary of Homeland Security Alejandro Mayorkas said in a press release. “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.” 

Under the current process, the more registrations that are submitted on behalf of an individual, the higher chance that individual will be selected in a lottery. Under the new proposal, each unique individual who has a registration submitted on their behalf would be entered into the selection process once, regardless of the number of registrations submitted on their behalf. This would improve the chances that a legitimate registration would be selected by significantly reducing or eliminating the advantage of submitting multiple registrations for the same beneficiary solely to increase the chances of selection, according to USCIS.  

“Furthermore, it could also give beneficiaries more choice between legitimate job offers because each registrant who submitted a registration for a selected beneficiary would have the ability to file an H-1B petition on behalf of the beneficiary,” the agency stated. 

Additional provisions in the proposed rule include: 

Streamlining eligibility requirements. Criteria for specialty occupation positions would be revised to clarify that a position may allow a range of degrees, although there must be a direct relationship between the required degree field(s) and the duties of the position. 

Program efficiency. The proposed rule codifies that adjudicators generally should defer to a prior determination when no underlying facts have changed at time of a new filing. 

Flexibilities and cap exemptions. Certain exemptions to the H-1B cap would be expanded for certain nonprofit entities or governmental research organizations as well as beneficiaries who are not directly employed by a qualifying organization. DHS would also extend certain flexibilities for students on an F-1 visa when students are seeking to change their status to H-1B. Additionally, DHS would establish new H-1B eligibility requirements for rising entrepreneurs. 

Integrity measures. In addition to changing the selection process, Related entities would be prohibited from submitting multiple registrations for the same beneficiary. The rule would also codify USCIS’ authority to conduct site visits and clarify that refusal to comply with site visits may result in denial or revocation of the petition. 

The 60-day public comment period started today following publication of the NPRM in the Federal Register.