USCIS Proposes Rule to Modernize the H-1B Visa Program, H-1B Lottery

On October 23, 2023, a proposed rule was submitted for review and a notice and comment period to amend the H-1B program after a formal announcement of these potential regulatory changes from the United States Citizenship & Immigration Services (USCIS) on October 20, 2023. These proposed changes include revising the definition and criteria for approval of an H-1B “specialty occupation,” amending and properly defining the requirements of the “employer/employee relationship,” better assisting entrepreneurs in potentially benefitting from the H-1B program, addressing cap-gap issues in the H-1B process to avoid unintended leaves of absences for F-1 OPT employees, etc.

A point of emphasis for these new regulations is also to improve and increase safe-guards in the H-1B electronic registration lottery system.  As noted by the USCIS and by previous GG&W posts, the USCIS had previously flagged a trending issue that during this past year’s H-1B lottery, there were a large number of eligible registrations for beneficiaries with multiple registrations - much larger than in previous years.

Obviously, this raised serious concerns that some companies and/or foreign nationals gained an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary. The USCIS further stated that “This may have unfairly increased their chances of selection. [The USCIS] remain[s] committed to deterring and preventing abuse of the registration process, and to ensuring only those who follow the law are eligible to file an H-1B cap petition.” These concerns prompted the USCIS to conduct investigations, issue Notices of Intent to Deny (NOIDs), make criminal referrals to law enforcement if needed, etc.

To the Service’s credit, the proposed H-1B “modernization” rule is expected to introduce measures designed to reduce the potential for misuse of the H-1B lottery system so that the events of the FY 2024 H-1B cap registration are not repeated. This news should be welcomed by all legitimate users of the H-1B program, and should lead to a much greater chance of success in future years for H-1B lottery registrants, including GG&W clients.

For more information on the above, please see the following links:

https://www.uscis.gov/newsroom/news-releases/dhs-issues-proposed-rule-to-modernize-the-h-1b-specialty-occupation-worker-program

Federal Register :: Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers

https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process