On October 23, 2023, U.S. Citizenship and Immigration Services (USCIS), the component within the Department of Homeland Security (DHS) charged with the adjudication of applications for immigration benefits and naturalization, proposed in a 94-page, single-spaced, three-column document to “modernize” the H-1B nonimmigrant visa category for noncitizen workers in specialty occupations. The comment period for this “notice of proposed rulemaking” (NPRM) expired on December 22, 2023.

USCIS in the NPRM rightly acknowledged that H-1B modernization is necessary in order to create “opportunities for innovation and expansion.” This goal corresponds with the legislative history of decades-old statutes that recognized the imperative that the U.S. take affirmative steps to compete with other nations for high-skilled talent. See, the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), cited in the NPRM, 88 Fed. Reg. at 72873, text accompanying FN 6). These statutes, and the Congressional motivations behind them, are especially important today as multiple countries are increasingly developing new immigration programs which compete with the U.S. in the search for high-skilled workers.

The media has given comparatively little attention to the NPRM, focusing mostly on the changes USCIS considers necessary to prevent a recurrence of the seeming gaming of the system whereby some noncitizens have enjoyed greater chance of selection under the H-1B lottery.

Behind the scenes, however, numerous immigration stakeholders prepared and submitted comments expressing fleeting thanks for a few provisions, while sounding alarms over several other proposed changes which many fear will result in needless agency delays in adjudication and many more adverse, unwelcome and burdensome impositions from USCIS. The NPRM, if finalized as a regulation without changes, would impose new requirements for initial evidence, and likely generate many more requests for additional evidence, notices of intent to deny H-1B petitions, and notices of intent to revoke previously approved petitions.

For the benefit of concerned readers, this blog post will offer handy links to some of the more comprehensive and concerning of the 1,315 public comments submitted.

The comments linked below often took issue with many of the same concerns (although not necessarily agreeing in unison or expressing objections on all points raised). Included among the more worrisome proposals in the NPRM are:

  • the changes to the proposed definition of an H-1B specialty occupation requiring a direct relationship between the noncitizen’s degree and the employer’s proposed job duties rather than a nexus between the coursework studied and the job requirements;
  • the new H-1B specialty occupation limitations in the NPRM are difficult to square with Biden administration’s October 30, 2023 Executive Order 14110 on the “Safe, Secure and Trustworthy Development and Use of Artificial Intelligence;”
  • the assertion by USCIS that it will determine H-1B specialty-occupation eligibility not by assessing the employer’s job duties but rather by reviewing the contractual terms prescribed in any agreement between the employer and the end customer (even where the contract might contain no job descriptions);
  • the narrowly described circumstances in which USCIS will give deference to prior agency adjudications involving the same previously approved H-1B job duties and worker qualifications;
  • the requirement to file a new or amended petition whenever a new H-1B Labor Condition Application (LCA) must be certified by the Department of Labor (DOL) because of a job location change;
  • the claim of USCIS that it has authority to review and disagree with DOL-certified LCA determinations in order to confirm that an LCA “supports” and “corresponds with” the H-1B petition;
  • the new obligation imposed on employers to submit evidence that an H-1B beneficiary has maintained nonimmigrant status in the U.S. — apparently even for periods before the employer ever encountered the noncitizen;
  • the dramatic expansion of unannounced USCIS site visits — in violation of the Homeland Security Act — to the business locations of H-1B employers and their customers and to the homes of H-1B workers, coupled with the assertion by USCIS that it will deny extensions or amendments of status or revoke approved petitions if any of these parties refuses to cooperate in the course of a site visit.

Immigration stakeholders are therefore encouraged to review these and other submitted comments:

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No external immigration stakeholders can predict what the final H-1B modernization regulation will say, if and when it is ultimately published and becomes effective. Now is therefore the time to develop contingency plans based on the ominous provisions of the NPRM.