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DHS/USCIS RIN: 1615-AC70 Publication ID: Fall 2024 
Title: Modernizing H-1B Requirements and Oversight, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers 
Abstract:

On October 23, 2023, the Department of Homeland Security (DHS) published a notice of proposed rulemaking (NPRM or proposed rule) at 88 FR 72870 that proposed 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 proposed to revise the regulations relating to definition of "specialty occupation” and the "employer-employee relationship"; provide flexibility for beneficiary-owners; 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. The October 23, 2023, NPRM was informed by public comments USCIS received in response to a Request for Public Input that published on April 19, 2021.

On February 2, 2024, DHS published a final rule, 89 FR 7456, implementing a beneficiary centric selection process for H-1B registrations, as well as additional integrity measures and flexibilities related to H-1B registration. DHS continues to consider the suggestions made in public comments received as they relate to the other proposed provisions discussed in the October 23, 2023, NPRM, and intends to finalize the remaining provisions.

 
Agency: Department of Homeland Security(DHS)  Priority: Other Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Final Rule Stage 
Major: No  Unfunded Mandates: No 
CFR Citation: 8 CFR 214.2   
Legal Authority: 6 U.S.C. 101    6 U.S.C. 112    6 U.S.C. 202    8 U.S.C. 1101(a)(15)(F) and (H)(i)(b), 1103(a)(3), 1184(a), (c), (g)    and (i) and 1357(b)    ...   
Legal Deadline:  None

Statement of Need:

These 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 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:

In the final rule published on February 2, 2024 that codified the beneficiary centric registration selection process and other integrity measures, DHS estimated the annualized net cost savings of this rulemaking to be $2,199,374 annualized at 3 percent and 7 percent. DHS is still considering public comments on the remaining provisions from the October 23, 2023 NPRM and the resultant anticipated costs and benefits of the final rule that will address those remaining provisions. The October 23, 2023 publication contains a full analysis of all of the proposed provisions.

Timetable:
Action Date FR Cite
NPRM  10/23/2023  88 FR 72870   
NPRM Comment Period End  12/22/2023 
Final Action  02/02/2024  89 FR 7456   
Final Action Effective  03/06/2024 
Final Action  12/00/2024 
Regulatory Flexibility Analysis Required: YES  Government Levels Affected: None 
Small Entities Affected: Businesses  Federalism: No 
Included in the Regulatory Plan: Yes 
RIN Information URL: https://www.regulations.gov   Public Comment URL: https://www.regulations.gov  
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