Breaking News: U.S. Department of Homeland Security Announces NPRM for Update to H-1B Regulations (Summary Included)

News RoomNovember 3, 20230

Breaking News: U.S. Department of Homeland Security Announces NPRM for Update to H-1B Regulations (Summary Included)

At Brown Immigration Law, we strive to be your company’s partner in growth and innovation, on a global scale. We continue our commitment to demystifying the complex immigration laws of the United States and Canada to provide efficient and effective immigration and global mobility support. Please find the most recent breaking business immigration news below.


U.S. Department of Homeland Security Announces NPRM for Update to H-1B Regulations (Summary Included)

On October 23, 2023, the U.S. Department of Homeland Security (DHS) announced a notice of proposed rulemaking with significant updates for the H-1B program. Titled “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers”, DHS proposed that these updates will further streamline the H-1B program and improve both efficiency and integrity. Some of the key proposed updates include:

  • Revised definition for Specialty Occupation
    • NPRM clarifies that “normally” does not mean always
    • NPRM clarifies that a position may allow a range of degrees required for entry into the specialty occupation, yet there must be a direct relationship between the required degree field(s) and the position
  • NPRM seeks to update the criteria for H-1B cap exemption, permitting qualification when the Beneficiary is not directly employed by a qualifying organization, but still provides essential work, even if their duties do not necessarily directly further the organization’s essential purpose.
  • NPRM seeks to automatically extend the duration of F-1 status, and any employment authorization granted under 8 CFR 274a.12(c)(3)(i)(B) or (C), until April 1 of the relevant fiscal year, rather than October 1 (referring to “cap gap”)
  • NPRM seeks to add flexibility to the start date of cap-subject initial H-1B petitions (no longer strict requirement of October 1)
  • NPRM seeks to change the way the Service selects H-1B registrations (with a goal of reducing H-1B registration abuse):
    • USCIS would select registrations by unique beneficiary regardless of how many registrations are submitting on the beneficiary’s behalf
    • Issue clarity that related entities are prohibited from submitting multiple registrations for the same beneficiary
    • Codify the Service’s ability to deny an H-1B cap case if the registration contained a false or invalid representation
  • NPRM seeks to improve the H-1B program integrity through:
    • Codifying USCIS’s authority to request contracts
    • Requiring Petitioner to establish an actual and non-speculative offer of employment for work in the United States
    • Ensuring the LCA is properly submitted
    • Ensuring that Petitioner has a legal presence in the United States
  • NPRM proposes to clarify that beneficiary-owners may be eligible for H-1B status, while setting reasonable conditions for when the beneficiary owns a controlling interest in the petitioning entity.
  • NPRM also proposes to codify USCIS’s authority to conduct site visits and clarify that refusal to comply with site visits may result in denial or revocation of the petition

The NPRM proposes numerous other confirmations, codifications to current policy, and other updates, including: clarifying the rules for an H-1B amendment; codifying the Service’s policy of deferring to previous approvals; codifying the requirement of showing maintenance of status when filing an H-1B, and other updates. We welcome commonsense updates to the H-1B programs and the Service’s intention to enhance equity in the H-1B registration system. At the same time, we hope the proposed updates to the H-1B program do not inhibit or restrain Petitioners from obtaining H-1Bs for specialty workers. For example, yesterday, President Biden issued an executive order seeking to add further flexibility for immigrants and nonimmigrants working with Artificial Intelligence, seeking to “moderniz[e] and streamlin[e] visa criteria” for those working in this critical area. We hope that these regulations remain consistent in efforts to streamline, rather than to restrict, immigration and global mobility.

Looking forward, the 60-day comment period for the NPRM began upon its publication, lasting October 23, 2023 – December 22, 2023. We encourage any interested parties to comment. After, DHS will review all comments and conduct their analysis, deciding whether to proceed with the rulemaking process or update the proposed changes to the program. Given that the H-1B Registration window will open again in early March, we expect there is a vested interest in moving some or all of these suggested reforms forward before long. We will continue to monitor the updates to the H-1B program and report any that became final regulations.


“Why Hire Immigration Counsel – What to Expect in Service/Best Practices”

Managing Partner David Brown will speak about the value of hiring immigration counsel. Specifically, he’ll talk about the tools and best practices business immigration attorneys should use to add value to their client engagements. A well run outside immigration practice should act as a natural extension of the HR/legal team of a company, ensuring that individuals are concentrating on the task at hand and not their immigration status. David will also talk about the steps he feels are most valuable from a client perspective that limit HR’s involvement and allow the process to move as efficiently as possible while maintaining high levels of satisfaction.

H-1B Cap and Change of Employer Primer

Hosted by David Zaritzky Brown, Managing Partner, this session is geared towards a better understanding of what is H-1B status. David will spend time explaining how an H-1B change of employer works for employers seeking to hire someone in H-1 status, while also discussing the H-1B cap process so employers can prepare for the Cap registration coming in March 2024. For those employers who wish to plan ahead for the upcoming Cap lottery this will ensure all HR have a good understanding of what to expect and when.

Whether a Change of Employer filing, or New Cap Registration H-1B, David will answer all questions.

Think Canada – Contingency Planning for H-1B Cap Season

As the FY 2025 cap season nears, uncertainty looms over the heads of thousands of specialty workers while many businesses contemplate the very real risk that they will lose talented workers who are not selected. H-1B contingency planning is critical to successfully managing your foreign national workforce. Often an initial review involves considering what options exist for individuals to remain in the U.S., however, for companies implementing contingency plans for foreign nationals in the US, Canada offers a plethora of untapped and innovative immigration programs that will allow companies to relocate their employees quickly and easily to Canada while minimizing disruptions to the workforce and client deliverables.

Moderated by Managing Partner, David Zaritzky Brown, this program will highlight useful Canadian options supported by the Canadian practice, led by Clinton J. Green, Managing Attorney and Canadian Practice Lead, and his team.

Once registered, you will receive an email with a link to use to join the video chat on the day of the event. Please note: This link should not be shared with others; it is unique to you. If you ever misplace the invitation link, simply visit the webinar schedule on our website

If you have colleagues who may benefit from our talks, you are welcome to invite them to join by sharing our webinar schedule where they can subscribe for further information.

Don’t miss these opportunities to increase your knowledge on important immigration issues!

Thank you and we look forward to having you at the event.

Best Regards,
The Team at Brown Immigration Law

** This newsletter/memo is provided for informational and dis


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