Summary: H-1B Modernizing Rules
The US Department of Homeland Security (DHS) published a new regulation to “modernize” the H‑1B program. The new regulation is intended to update and streamline the H‑1B regulatory framework to align with contemporary workforce needs. Below is a summary of the key updates.
H-1B Amendment Petitions
The new rule clarifies that any change in work location that requires a new Labor Condition Application (LCA) is considered a material change and requires the petitioning employer to file an amended petition with USCIS prior to the change taking effect. The regulation does not provide a grace period for filing amended petitions. The beneficiary is not authorized to work under the materially changed terms and conditions of employment until the new or amended H–1B petition is approved and takes effect, unless the beneficiary is eligible for H–1B portability.
The new rule provides that USCIS shall send to the petitioner a notice of intent to revoke the approved petition if the petitioner failed to timely file an amended petition notifying USCIS of a material change.
Deference
The new regulation establishes a deference policy to clarify that, when adjudicating an H-1B petition involving the same parties and the same underlying facts, adjudicators generally should defer to a prior DHS determination on eligibility, unless a material error in the prior approval is discovered, or other material change or information impacts the petitioner’s, beneficiary’s, or applicant’s eligibility.
Deference to prior approvals does not equate to a lack of review of the petition. Petitioners continue to have the burden to present all required and relevant evidence and to establish eligibility for the requested classification.
Evidence of Maintenance of Status
DHS codified into regulation the instruction that, when seeking an extension or amendment of stay, the applicant or petitioner must submit supporting evidence to establish that the applicant or beneficiary maintained the previously accorded nonimmigrant status before the extension or amendment request was filed (e.g., form W2s and/or paystubs).
H1B Cap Gap Automatic Extension of Authorized Employment
In order to avoid disruptions in employment authorization for F-1 students transitioning to H-1B, the regulation has been updated so that an EAD holder who is the beneficiary of a timely filed and nonfrivolous H-1B petition requesting a change of status will be automatically extended until April 1st of the fiscal year for which H-1B status is being requested or until the validity start date of the approved petition, whichever is earlier. This extends the cap gap period from October 1st to potentially as late as April 1 of the following calendar year.
Business owners’ H-1B eligibility
The regulation clarifies that H-1B beneficiaries who have a controlling interest in the petitioning entity may be eligible for H-1B status. Such a beneficiary may perform duties that are related to owning and directing the petitioner’s business provided the beneficiary will perform specialty occupation duties a majority of the time. The initial H-1B and the first H-1B extension will be limited to 18 months instead of the normal three years.
Mitigation of the impact of lengthy petition adjudications
The rule allows USCIS to offer H-1B employers the opportunity to amend a petition’s requested validity period if the requested validity period has passed by the time the petition is adjudicated. If the existing LCA does not cover the new validity period, the employer will be able to provide a new LCA (the new LCA must meet the higher of the current prevailing or actual wage and will not be permitted to reduce the offered wage below the wage listed in the original petition).
Codification of the site visit program
The final rule codifies USCIS’s long-established Fraud Detection and National Security unit’s site visit program and clarifies that refusal to comply with a site visit could result in the denial or revocation of a petition. The rule also codifies the authority of DHS to conduct site visits at the location where the H-1B employee works, has worked, or will work, including third-party worksites, among other locations related to the H-1B employment.
H-1B Cap Exemptions
DHS also revised the regulations so that certain beneficiaries who are not directly employed by a cap-exempt qualifying organization, but who spend at least half their time providing essential work that supports or advances a fundamental purpose, mission, objective, or function of the qualifying organization could qualify as a cap-exempt beneficiary.