Final H-1B rule expected later this year with possible immigration restrictions

U.S. Citizenship and Immigration Services (USCIS) is expected to publish an H-1B rule later this year that could bring significant changes to employers. Provisions include H-1B measures that critics say undermine President Biden’s objectives in developing AI (artificial intelligence) and the U.S. semiconductor industry. On October 23, 2023, USCIS published a notice of proposed rulemaking that was subject to a 60-day comment period and has not been finalized yet. Current estimates point to the rule being published later this year, even after the election.

Problematic provisions in the rule included:

• The phrase “directly related to specific specialty,” use of which would narrow the positions considered to be specialty occupations as required under the H-1B regulations in direct contradiction with the Immigration and Nationality Act (INA), which does not state a degree must be “directly related” to a specific specialty; and
• The assertion that business administration is considered a “general degree” and therefore is insufficient to qualify for a specialty occupation without further specialization.

Other issues include the proposed rule’s new measure on third parties, which typically is an end client’s location. The rule contains language directing USCIS to look at a third-party’s requirements for an H-1B position rather than the petitioner’s stated requirements, which would create a brand new standard of a bona-fide employer, employer-employee relationship, and job offer requiring end-client verification that are not standard H-1B frameworks.

Also included in the proposed rule is language that would potentially give extraordinary authority to site visit officers to enter places of business, even individuals’ private homes (should the H-1B beneficiary be working from home) without advance warning or authorization. This action would potentially invalidate large numbers of H-1Bs simply because an employee does not or cannot comply with the agency’s requests.

Uniform opposition to the above language in the new rule came from businesses, universities, economic development organizations, and practitioners, noting the rule was incompatible with attracting AI talent in alignment with President Biden’s AI Executive Order of October 2023.

We are hopeful that USCIS will reconsider the pain points discussed above and consider thousands of comments received in aligning the H-1B program to meet the current Administration’s support of AI development and the semiconductor industry to ultimately meet the end goal of attracting and retaining foreign talent that will position the U.S. as a global technological leader.

Please contact an RSPC attorney for more information.