The New Proposed Rule
Simply titled “Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program,” this new rule attempts to correct certain aspects of legislation and regulation that could be ambiguous or unnecessarily rigorous. If approved, these changes won’t take effect immediately, but by publishing the notice, DHS is giving employers a chance to contribute to the final decisions and regulations.
Employer-Employee Relationship
To obtain an H-1B visa, the employer and employee must have a clear, valid relationship. But what does that mean? Under an H-1B petition, this term is usually cut-and-dried, referring to a work contract between the two parties. However, when the employer hires an H-1B employee with the intent to have them work at a third-party worksite, such as in the case of contractors, the term receives more scrutiny and can be ambiguous. Since a third-party worksite is not connected to the petitioning employer through ownership or operation, USCIS evaluates this decision in various ways, such as through work contracts and supervision records. With the new guidelines, these less clearcut third-party relationships will be better structured.
Site Visits
Per the terms of any H-1B, the petitioner and employee understand that random site visits are a right of USCIS. The new regulations would implement specific requirements and guidelines for on-site visits to ensure compliance and handle suspicion of fraud. Once on-site, the USCIS official should be easily able to verify the information on the H-1B petition. This is not always the case. The new regulations clarify the statutory authority of USCIS and define the visit procedures and how to handle unverifiable information.
Streamlining the H-1B Registration Process
Over the past few years, fraud and attempted misrepresentation of H-1B registrations have increased. New regulations would strengthen the H-1B cap registration process to include various changes that reduce misuse and fraud and increase fairness. Those who plan to sponsor petitions would still register electronically with the $10 registration fee per beneficiary. However, this ease of registration is concerning, given the attempted abuse of the system and problems with legitimate job offers. This is addressed in the proposed rule, where changes ensure more equal treatment in selecting chosen applicants.
The Cap-Gap
F-1 students who graduate with their higher education degree are legally permitted to obtain employment with F-1 OPT work authorization. The period between this OPT expiration and the H-1B fiscal year start date (October 1) is called the “cap-gap.” In some situations, the OPT employment authorization expires before the H-1B work start date. In the proposed rule, certain aspects of this cap gap, including timing and extensions, are addressed.
Filing Amendments to H-1B Petitions
When a material change in the original H-1B visa terms occurs, employers and employees are obligated to amend their petitions with the appropriate documents. This may include a change in pay, job description, worksite location, or work hours. The proposed rule discusses clarifications regarding job changes that require this amendment.
What’s Next?
Do any of these proposed regulations sound like they might affect you? If so, you have approximately 30-60 days to provide your feedback. Currently, DHS has a target date of December 2023. After that, the proposals will be finalized and published for public access.
These developments will likely change over the next few weeks, and Visa2US will be here to share any updates and insights with you along the way. In the meantime, should you have any questions regarding your H-1B visa, contact our legal professionals any time, day or night.
