U.S. Citizenship and Immigration Services (USCIS) is advancing a proposed regulation that could bring significant updates to existing regulations governing the use of H-1B visas. The text of the proposed regulation, titled “Modernizing H-1B Requirements and Oversight, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers” is currently undergoing review by the Office of Management and Budget (OMB) as the initial step in its regulatory journey. While the proposed regulation is likely to be published in the Federal Register later this year, the actual date will depend on when OMB’s review is completed, typically a process of several months.
At this juncture, the specific details of the proposed regulation have not been publicly released, however preliminary insights from USCIS suggest the proposed rule will:
- Revise the definition of "employer-employee relationship."
- Introduce increased flexibility for start-up entrepreneurs
- Increase anti-fraud measures within the H-1B cap registration system.
- Clarify guidance on H-1B “cap gap” issues experienced by F-1 nonimmigrants.
- Offer flexibility on H-1B employment commencement dates in certain limited scenarios.
- Reiterate and further clarify the need for amended or new H-1B petitions in the event of substantial changes in work location.
- Incorporate protocols for the Fraud Detection and National Security (FDNS) site visit program, including its applicability H-1B dependent employers for whom commercial data validation is not available.
Once the OMB greenlights the proposed rule, it will be set for Federal Register publication followed by a 60-day window for public comments. The final version of the rule, inclusive of its implementation timeline, will be unveiled after USCIS has evaluated these comments.
As such, the timeline for the rule's finalization, including whether it will be finalized prior to the FY 2025 H-1B cap season that kicks off in March 2024, remains uncertain.
This update is for informational purposes only. For tailored advice or further questions, please contact a G&A attorney.