A final rule regarding qualifications for the H-1B visa is expected to be published by U.S. Citizenship and Immigration Services (USCIS) sometime in 2024. The proposed rulemaking notice was issued on October 23, 2023, starting the 60-day public comment period, and has not yet been finalized. Per the proposal, there may be significant changes for employers seeking H-1B visa professionals.
Education Requirements
One of the concerns is the narrowing of positions considered specialty occupations. Per the proposed rule, a position must require a U.S. baccalaureate or higher degree, or its equivalent, that is specifically and directly related to the role. A similar approach was blocked by courts when proposed by the Trump administration over the use of ‘directly related’. A concern noted at that time, and still valid now, is the impact on foreign-born professionals already working in the United States.
Current law, per the Immigration and Nationality Act (INA), does not specify that a degree must be “directly related” for a specific specialty. In fact, per a recent analysis, over half of U.S. born individuals and 18% of temporary visa holders who work in computer occupations do not have a degree in computer science or electrical engineering. Among chemists, 48% have degrees in areas other than chemistry.
Further, the proposal suggests the business administration degree is considered a “general degree” and is not sufficient for a specialty occupation without additional specialization. Of concern are foreign nationals with higher level degrees, including a master’s in business, being ineligible for the H-1B status. It can also limit the number of international students enrolling in U.S. universities to pursue a master’s level business degree.
Third-Party Requirements
Looking at public comments, many feel the language that suggests USCIS consider a third-party’s requirements for the H-1B position rather than the employers’ requirements is problematic. Per the current proposal, some feel the Department of Homeland Security (DHS) is creating a new standard regarding the bona-fide employer, employer-employee relationship. Essentially, the commenters state DHS is requiring client validation and contracting terms that are not considered standard business.
Site Visits
Concerns over language outlining site visits were also noted in the public comments. The proposal would give extraordinary authority to DHS officers to enter work locations including businesses or even private homes without advance warning or authorization. Additionally, employers might be required to disclose sensitive information about company representatives working at a third-party site, even if those representatives are not direct employees.
Areas of Support
On the other hand, commenters noted areas of support. Specifically, support for changes made to discourage multiple registrations for the same individual are noted, a rule previously published.
University groups and employers noted support for extending the “cap-gap” for F-1 students when changing to H-1B status, extending qualifications for organizations as H-1B cap exempt entities, greater leeway for H-1B holders to be entrepreneurs, and confirming deference for prior findings of fact when reviewing applications. Under the Trump administration, deference to prior findings of fact was ended, causing longtime employees of U.S. companies living the country to leave when their applications were rejected by USCIS adjudicators. Activating deference will likely improve operations and prevent further disruption of business immigration.
The rule has not yet been received by the Office of Management and Budget for review. Upon receipt, additional time is required for their review. If approved, a likely delay to the effective date, once published, is expected. The rule may not be released until after the U.S. presidential election. There are concerns that the rule may limit U.S. competitiveness when it comes to developing technologies, including artificial intelligence.
As always ILBSG actively monitors ongoing updates to U.S. immigration policy, both employment-based and family-based. If you have questions, contact us. Our team of experienced attorneys work directly with our clients to ensure they are prepared and get the right advice.