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DHS/USCIS RIN: 1615-AC70 Publication ID: Fall 2023 
Title: Modernizing H-1B Requirements and Oversight, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers 

The Department of Homeland Security (DHS) is proposing to amend its regulations governing H-1B specialty occupation workers and F-1 students who are the beneficiaries of timely filed H-1B cap-subject petitions. Specifically, DHS proposes to revise the regulations relating to "specialty occupation” and the "employer-employee relationship"; provide flexibility for start-up entrepreneurs; implement new requirements and guidelines for H-1B site visits; provide flexibility on the employment start date listed on the petition (in limited circumstances); address "cap-gap" issues; bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system; modernize cap exemptions; clarify the requirement that an amended or new petition be filed where there are material changes; and codify USCIS’ deference policy and requirement of maintenance of status for all employment-based nonimmigrant classifications that use Form I-129, among other provisions.

Agency: Department of Homeland Security(DHS)  Priority: Other Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage 
Major: Yes  Unfunded Mandates: No 
CFR Citation: 8 CFR 214.2   
Legal Authority: 6 U.S.C. 101, 112 and 202    8 U.S.C. 1101(a)(15)(F) and (H)(i)(b),1103(a), 1184(a), 1184(c), 1184(i) and 1357(b)    ...   
Legal Deadline:  None

Statement of Need:

These proposed changes are needed to modernize and streamline the requirements of the H-1B program, improve program efficiency and integrity measures, and provide greater benefits and flexibilities for petitioners and beneficiaries.

Summary of the Legal Basis:

The Secretary of Homeland Security’s authority for these proposed regulatory amendments is found in various sections of the Immigration and Nationality Act (INA or the Act), 8 U.S.C. 1101 et seq., and the Homeland Security Act of 2002 (HSA), Pub. L. 107-296, 116 Stat. 2135, 6 U.S.C. 101 et seq. General authority for issuing this rule is found in section 103(a) of the INA, 8 U.S.C. 1103(a), which authorizes the Secretary to administer and enforce the immigration and nationality laws, as well as section 112 of the HSA, 6 U.S.C. 112, which vests all of the functions of DHS in the Secretary and authorizes the Secretary to issue regulations. Section 101(a)(15) of the INA, 8 U.S.C. 1101(a)(15) establishes classifications for noncitizens who are coming temporarily to the United States as nonimmigrants. Section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), authorizes the Secretary to prescribe, by regulation, the terms and conditions of the admission of nonimmigrants. Section 214(c) of the INA, 8 U.S.C. 1184(c) authorizes the Secretary to prescribe how an importing employer may petition for nonimmigrant workers, the information that an importing employer must provide in the petition; and certain fees that are required for certain nonimmigrant petitions. Section 214(g) of the INA, 8 U.S.C. 1184(g), prescribes the H-1B numerical limitations, various exceptions to those limitations, and the period of authorized admission for H-1B nonimmigrants. Section 214(i) of the INA, 8 U.S.C. 1184(i), sets forth the definition and requirements of a specialty occupation. Section 248 of the INA, 8 U.S.C. 1258, authorizes a noncitizen to change from any nonimmigrant classification (subject to certain exceptions) to any other nonimmigrant classification if the noncitizen was lawfully admitted to the United States as a nonimmigrant and is continuing to maintain that status and is not otherwise subject to the 3- or 10-year bar applicable to certain noncitizens who were unlawfully present in the United States. Section 274A of the INA, 8 U.S.C. 1324a, recognizes the Secretary’s authority to extend employment authorization to noncitizens in the United States. Finally, section 287(b) of the INA, 8 U.S.C. 1357(b), authorizes the taking and consideration of evidence concerning any matter that is material or relevant to the enforcement of the INA.

Anticipated Costs and Benefits:

DHS is currently considering the specific impacts of the proposed provisions.

Action Date FR Cite
NPRM  11/00/2023 
Regulatory Flexibility Analysis Required: Yes  Government Levels Affected: None 
Small Entities Affected: Businesses  Federalism: No 
Included in the Regulatory Plan: Yes 
RIN Data Printed in the FR: Yes 
Agency Contact:
Charles Nimick
Chief, Business and Foreign Workers Division, Office of Policy and Strategy
Department of Homeland Security
U.S. Citizenship and Immigration Services
5900 Capital Gateway Drive, Suite 4S190,
Camp Springs, MD 20588-0009
Phone:240 721-3000