72870 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Part 214 

[CIS No. 2745–23; DHS Docket No. USCIS– 

2023–0005] 

RIN 1615–AC70 

Modernizing H–1B Requirements, 

Providing Flexibility in the F–1 

Program, and Program Improvements 

Affecting Other Nonimmigrant Workers 

AGENCY: U.S. Citizenship and 

Immigration Services, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The U.S. Department of 

Homeland Security (DHS) proposes to 

amend its regulations governing H–1B 

specialty occupation workers to 

modernize and improve the efficiency of 

the H–1B program, add benefits and 

flexibilities, and improve integrity 

measures. Some of the proposed 

provisions would narrowly impact other 

nonimmigrant classifications, including: 

H–2, H–3, F–1, L–1, O, P, Q–1, R–1, E– 

3, and TN. DHS intends to finalize the 

proposals contained in this rulemaking 

through one or more final rules, 

depending on agency resources. 

DATES: Written comments must be 

submitted on or before December 22, 

2023. 

ADDRESSES: You may submit comments 

on the entirety of this proposed 

rulemaking package, identified by DHS 

Docket No. USCIS–2023–0005 through 

the Federal eRulemaking Portal: https:// 

www.regulations.gov. Follow the 

website instructions for submitting 

comments. The electronic Federal 

Docket Management System will accept 

comments before midnight Eastern time 

on December 22, 2023. 

Comments submitted in a manner 

other than the one listed above, 

including emails or letters sent to DHS 

or USCIS officials, will not be 

considered comments on the proposed 

rule and may not receive a response 

from DHS. Please note that DHS and 

USCIS cannot accept any comments that 

are hand-delivered or couriered. In 

addition, DHS and USCIS cannot accept 

comments contained on any form of 

digital media storage devices, such as 

CDs/DVDs and USB drives. USCIS is 

also not accepting mailed comments at 

this time. If you cannot submit your 

comment by using https://

www.regulations.gov, please contact 

Samantha Deshommes, Chief, 

Regulatory Coordination Division, 

Office of Policy and Strategy, U.S. 

Citizenship and Immigration Services, 

U.S. Department of Homeland Security, 

by telephone at (240) 721–3000 for 

alternate instructions. 

FOR FURTHER INFORMATION CONTACT: 

Charles L. Nimick, Chief, Business and 

Foreign Workers Division, Office of 

Policy and Strategy, U.S. Citizenship 

and Immigration Services, U.S. 

Department of Homeland Security, 5900 

Capital Gateway Drive, Camp Springs, 

MD 20746; telephone (240) 721–3000. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Public Participation 

II. Executive Summary 

A. Purpose of the Regulatory Action 

B. Summary of the Major Provisions of the 

Regulatory Action 

1. Modernization and Efficiencies 

2. Benefits and Flexibilities 

3. Program Integrity 

C. Summary of Costs and Benefits 

D. Request for Preliminary Public Input 

E. Future Rulemaking Actions 

III. Background and Purpose 

A. Legal Authority 

B. Background 

1. The H–1B Program 

2. The F–1 Program 

IV. Discussion of the Proposed Rule 

A. Modernization and Efficiencies 

1. Amending the Definition of a ‘‘Specialty 

Occupation’’ 

2. Amending the Criteria for Specialty 

Occupation Positions 

3. Amended Petitions 

4. Deference 

5. Evidence of Maintenance of Status 

6. Eliminating the Itinerary Requirement 

for H Programs 

7. Validity Expires Before Adjudication 

B. Benefits and Flexibilities 

1. H–1B Cap Exemptions 

2. Automatic Extension of Authorized 

Employment Under 8 CFR 214.2(f)(5)(vi) 

(Cap-Gap) 

3. Start Date Flexibility for Certain H–1B 

Cap-Subject Petitions 

C. Program Integrity 

1. The H–1B Registration System 

2. Beneficiary Centric Selection 

3. Bar on Multiple Registrations Submitted 

by Related Entities 

4. Registrations With False Information or 

That Are Otherwise Invalid 

5. Alternatives Considered 

6. Provisions To Ensure Bona Fide Job 

Offer for a Specialty Occupation Position 

a. Contracts 

b. Non-Speculative Employment 

c. LCA Corresponds With the Petition 

d. Revising the Definition of U.S. Employer 

e. Employer-Employee Relationship 

f. Bona Fide Job Offer 

g. Legal Presence and Amenable to Service 

of Process 

7. Beneficiary-Owners 

8. Site Visits 

9. Third-Party Placement (Codifying 

Defensor) 

D. Request for Preliminary Public Input 

Related to Future Actions/Proposals 

1. Use or Lose 

2. Beneficiary Notification 

E. Potential Publication of One or More 

Final Rules 

F. Severability 

V. Statutory and Regulatory Requirements 

A. Executive Order 12866 (Regulatory 

Planning and Review) and Executive 

Order 13563 (Improving Regulation and 

Regulatory Review) 

1. Summary 

2. Background 

3. Costs, Transfers, and Benefits of the 

Proposed Rule 

a. Amended Petitions 

b. Deference to Prior USCIS Determinations 

of Eligibility in Requests for Extensions 

of Petition Validity 

c. Evidence of Maintenance of Status 

d. Eliminating the Itinerary Requirement 

for H Programs 

e. Validity Period Expires Before 

Adjudication 

f. H–1B Cap Exemptions 

g. Automatic Extension of Authorized 

Employment ‘‘Cap-Gap’’ 

h. Start Date Flexibility for Certain H–1B 

Cap-Subject Petitions 

i. The H–1B Registration System 

j. Beneficiary Centric Selection 

k. Bar on Multiple Registrations Submitted 

by Related Entities 

l. Registrations With False Information or 

That Are Otherwise Invalid 

m. Provisions To Ensure Bona Fide Job 

Offer for a Specialty Occupation Position 

(1) Contracts 

(2) Non-Speculative Employment 

(3) LCA Corresponds With the Petition 

(4) Revising the Definition of U.S. 

Employer 

(5) Employer-Employee Relationship 

n. Beneficiary-Owners 

o. Site Visits 

p. Third-Party Placement (Codifying 

Defensor) 

q. Additional Time Burden for Form I–129 

H–1B 

r. Additional Time Burden for H 

Classification Supplement to Form I–129 

4. Alternatives Considered 

5. Total Quantified Net Costs of the 

Proposed Regulatory Changes 

B. Regulatory Flexibility Act (RFA) 

1. Initial Regulatory Flexibility Analysis 

a. A Description of the Reasons Why the 

Action by the Agency Is Being 

Considered 

b. A Statement of the Objectives of, and 

Legal Basis for, the Proposed Rule 

c. A Description and, Where Feasible, an 

Estimate of the Number of Small Entities 

to Which the Proposed Changes Would 

Apply 

d. A Description of the Projected 

Reporting, Recordkeeping, and Other 

Compliance Requirements of the 

Proposed Rule, Including an Estimate of 

the Classes of Small Entities That Will 

Be Subject to the Requirement and the 

Types of Professional Skills 

e. An Identification of All Relevant Federal 

Rules, to the Extent Practical, That May 

Duplicate, Overlap, or Conflict With the 

Proposed Rule 

f. A Description of Any Significant 

Alternatives to the Proposed Rule That 

Accomplish the Stated Objectives of 


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1See, e.g., U.S. Office of Personnel Management, 

Memorandum for Heads of Executive Departments 

and Agencies: ‘‘Guidance Release—E.O. 13932; 

Modernizing and Reforming the Assessment and 

Hiring of Federal Job Candidates’’ (May 19, 2022), 

https://chcoc.gov/content/guidance-release-eo13932-modernizing-and-reforming-assessment-andhiring-federal-job. 

Applicable Statutes and That Minimize 

any Significant Economic Impact of the 

Proposed Rule on Small Entities 

C. Unfunded Mandates Reform Act of 1995 

(UMRA) 

D. Congressional Review Act 

E. Executive Order 13132 (Federalism) 

F. Executive Order 12988: Civil Justice 

Reform 

G. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

H. National Environmental Policy Act 

(NEPA) 

I. Paperwork Reduction Act 

Table of Abbreviations 

AAO—Administrative Appeals Office 

AC21—American Competitiveness in the 

Twenty-first Century Act 

ACWIA—American Competitiveness and 

Workforce Improvement Act of 1998 

BLS—Bureau of Labor Statistics 

CEQ—Council on Environmental Quality 

CFR—Code of Federal Regulations 

CMSA—Consolidated Metropolitan 

Statistical Area 

COS—Change of Status 

CPI–U—Consumer Price Index for All 

Urban Consumers 

D/S—Duration of status 

DHS—U.S. Department of Homeland 

Security 

DOL—U.S. Department of Labor 

DOS—U.S. Department of State 

FDNS—Fraud Detection and National 

Security 

FR—Federal Register 

FY—Fiscal Year 

HR—Human Resources 

HSA—Homeland Security Act of 2002 

ICE—Immigration and Customs 

Enforcement 

IMMACT 90—Immigration Act of 1990 

INA—Immigration and Nationality Act 

INS—legacy Immigration and 

Naturalization Service 

IRFA—Initial Regulatory Flexibility 

Analysis 

IRS—Internal Revenue Service 

LCA—Labor Condition Application 

MSA—Metropolitan Statistical Area 

NAICS—North American Industry 

Classification System 

NEPA—National Environmental Policy Act 

NOID—Notice of Intent to Deny 

NPRM—Notice of proposed rulemaking 

OIRA—Office of Information and 

Regulatory Affairs 

OMB—Office of Management and Budget 

OP&S—Office of Policy and Strategy 

OPT—Optional Practical Training 

PM—Policy Memorandum 

PMSA—Primary Metropolitan Statistical 

Area 

PRA—Paperwork Reduction Act PRD— 

Policy Research Division 

Pub. L.—Public Law 

RFA—Regulatory Flexibility Act of 1980 

RFE—Request for Evidence RIA— 

Regulatory Impact Analysis 

RIN—Regulation Identifier Number 

SBA—Small Business Administration 

SEVP—Student and Exchange Visitor 

Program 

SOC—Standard Occupational 

Classification 

Stat.—U.S. Statutes at Large 

TLC—Temporary Labor Certification 

UMRA—Unfunded Mandates Reform Act 

U.S.C.—United States Code 

USCIS—U.S. Citizenship and Immigration 

Services 

I. Public Participation 

DHS invites all interested parties to 

participate in this rulemaking by 

submitting written data, views, 

comments, and arguments on all aspects 

of this proposed rule. DHS also invites 

comments that relate to the economic, 

environmental, or federalism effects that 

might result from this proposed rule. 

Comments must be submitted in 

English, or an English translation must 

be provided. Comments that will 

provide the most assistance to USCIS in 

implementing these changes will 

reference a specific portion of the 

proposed rule, explain the reason for 

any recommended change, and include 

data, information, or authority that 

support such recommended change. 

Comments submitted in a manner other 

than the one listed above, including 

emails or letters sent to DHS or USCIS 

officials, will not be considered 

comments on the proposed rule and 

may not receive a response from DHS. 

Instructions: If you submit a 

comment, you must include the agency 

name (U.S. Citizenship and Immigration 

Services) and the DHS Docket No. 

USCIS–2023–0005 for this rulemaking. 

Please note all submissions will be 

posted, without change, to the Federal 

eRulemaking Portal at https://

www.regulations.gov, and will include 

any personal information you provide. 

Therefore, submitting this information 

makes it public. You may wish to 

consider limiting the amount of 

personal information that you provide 

in any voluntary public comment 

submission you make to DHS. DHS may 

withhold information provided in 

comments from public viewing that it 

determines may impact the privacy of 

an individual or is offensive. For 

additional information, please read the 

Privacy and Security Notice available at 

https://www.regulations.gov. 

Docket: For access to the docket and 

to read background documents or 

comments received, go to https://

www.regulations.gov, referencing DHS 

Docket No. USCIS–2023–0005. You may 

also sign up for email alerts on the 

online docket to be notified when 

comments are posted or a final rule is 

published. 

II. Executive Summary 

A. Purpose of the Regulatory Action 

The purpose of this rulemaking is to 

modernize and improve the regulations 

relating to the H–1B program by: (1) 

streamlining the requirements of the H– 

1B program and improving program 

efficiency; (2) providing greater benefits 

and flexibilities for petitioners and 

beneficiaries; and (3) improving 

integrity measures. Some of the 

proposed provisions would narrowly 

impact other nonimmigrant 

classifications. 

B. Summary of the Major Provisions of 

the Regulatory Action 

1. Modernization and Efficiencies 

DHS proposes to streamline 

requirements for the H–1B program by: 

(1) revising the regulatory definition and 

criteria for a ‘‘specialty occupation’’; (2) 

clarifying that ‘‘normally’’ does not 

mean ‘‘always’’ within the criteria for a 

specialty occupation; and (3) clarifying 

that a position may allow a range of 

degrees, although there must be a direct 

relationship between the required 

degree field(s) and the duties of the 

position. As 21st century employers 

strive to generate better hiring 

outcomes, improving the match between 

required skills and job duties, 

employers have increasingly become 

more aware of a skills-first culture, led 

by the Federal Government’s 

commitment to attract and hire 

individuals well-suited to available 

jobs.1 The flexibility inherent in H–1B 

adjudications to identify job duties and 

particular positions where a bachelor’s 

or higher degree in a specific specialty, 

or its equivalent, is normally required, 

allows employers to explore where 

skills-based hiring is sensible. 

DHS also proposes to clarify when an 

amended or new petition must be filed 

due to a change in an H–1B worker’s 

place of employment to be consistent 

with current policy guidance. 

Additionally, DHS proposes to codify 

and clarify its deference policy to state 

that, if there has been no material 

change in the underlying facts, 

adjudicators generally should defer to a 

prior determination involving the same 

parties and underlying facts. DHS also 

proposes to update the regulations to 

expressly require that evidence of 

maintenance of status must be included 

with the petition if a beneficiary is 

seeking an extension or amendment of 

stay. This policy would impact all 

employment-based nonimmigrant 

classifications that use Form I–129, 


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2Although several provisions of the INA 

discussed in this NPRM refer exclusively to the 

‘‘Attorney General,’’ such provisions are now to be 

read as referring to the Secretary of Homeland 

Security by operation of the HSA. See 6 U.S.C. 

202(3), 251, 271(b), 542 note, 557; 8 U.S.C. 

1103(a)(1), (g), 1551 note; Nielsen v. Preap, 139 S. 

Ct. 954, 959 n.2 (2019). 

Petition for Nonimmigrant Worker. DHS 

further proposes to eliminate the 

itinerary requirement, which would 

apply to all H classifications, and allow 

petitioners to amend requested validity 

periods where the validity expires 

before adjudication. 

2. Benefits and Flexibilities 

DHS proposes to modernize the 

definition of employers who are exempt 

from the annual statutory limit on H–1B 

visas to create more flexibility for 

nonprofit and governmental research 

organizations and beneficiaries who are 

not directly employed by a qualifying 

organization. Specifically, DHS 

proposes to change the definition of 

‘‘nonprofit research organization’’ and 

‘‘governmental research organization’’ 

by replacing ‘‘primarily engaged’’ and 

‘‘primary mission’’ with ‘‘fundamental 

activity’’ to permit a nonprofit entity or 

governmental research organization that 

conducts research as a fundamental 

activity, but is not primarily engaged in 

research or where research is not a 

primary mission, to meet the definition 

of a nonprofit research entity. 

Additionally, DHS proposes to revise 

the requirements for beneficiaries to 

qualify for H–1B cap exemption when 

they are not directly employed by a 

qualifying organization, but still provide 

essential work, even if their duties do 

not necessarily directly further the 

organization’s essential purpose. 

DHS also proposes to provide 

flexibilities, such as automatically 

extending 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 of the same 

fiscal year, to avoid disruptions in 

lawful status and employment 

authorization for F–1 students changing 

their status to H–1B. Additionally, DHS 

is proposing to clarify the requirements 

regarding the requested employment 

start date on H–1B cap-subject petitions 

to permit filing with requested start 

dates that are after October 1 of the 

relevant fiscal year, consistent with 

current USCIS policy. 

3. Program Integrity 

DHS proposes to address H–1B cap 

registration abuse by changing the way 

USCIS selects registrations. Instead of 

selecting by registration, USCIS would 

select registrations by unique 

beneficiary, thereby reducing the 

potential for gaming the process to 

increase chances for selection and 

helping ensure that each beneficiary 

would have the same chance of being 

selected, regardless of how many 

registrations are submitted on their 

behalf. DHS also proposes to clarify that 

related entities are prohibited from 

submitting multiple registrations for the 

same beneficiary, similar to the 

prohibition on related entities filing 

multiple cap-subject petitions for the 

same beneficiary for the same fiscal 

year’s numerical allocations. 

Additionally, DHS proposes to codify 

USCIS’s ability to deny H–1B petitions 

or revoke an approved H–1B petition 

where the underlying registration 

contained a false attestation or was 

otherwise invalid. 

DHS further proposes to improve the 

integrity of the H–1B program by: (1) 

codifying its authority to request 

contracts; (2) requiring that the 

petitioner establish that it has an actual, 

non-speculative position in a specialty 

occupation available for the beneficiary 

as of the requested start date; (3) 

ensuring that the labor condition 

application (LCA) properly supports 

and corresponds with the petition; (4) 

revising the definition of ‘‘United States 

employer’’ by codifying the existing 

requirement that the petitioner has a 

bona fide job offer for the beneficiary to 

work within the United States as of the 

requested start date, consistent with 

current DHS policy; and (5) adding a 

requirement that the petitioner have a 

legal presence and be amenable to 

service of process in the United States. 

DHS additionally 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. 

DHS 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. Additionally, DHS 

proposes to clarify that if an H–1B 

worker will be staffed to a third party, 

meaning they will be contracted to fill 

a position in the third party’s 

organization, it is the requirements of 

that third party, and not the petitioner, 

that are most relevant when determining 

whether the position is a specialty 

occupation. Through these provisions, 

DHS aims to prevent fraud and abuse 

and maintain H–1B program integrity. 

C. Summary of Costs and Benefits 

As discussed in the preamble, the 

purpose of this rulemaking is to 

modernize and improve the regulations 

relating to the H–1B program by: (1) 

streamlining H–1B program 

requirements and improving program 

efficiency; (2) providing greater benefits 

and flexibilities for petitioners and 

beneficiaries; and (3) improving 

integrity measures. 

For the 10-year period of analysis of 

the proposed rule, DHS estimates the 

annualized net costs of this rulemaking 

would be $6,339,779 annualized at 3 

percent and 7 percent. Table 12 

provides a more detailed summary of 

the proposed rule provisions and their 

impacts. 

D. Request for Preliminary Public Input 

Finally, DHS is requesting 

preliminary public input on ideas that 

would curb or eliminate the possibility 

that petitioners may have speculative 

job opportunities as of the requested 

start date and delay admission of H–1B 

beneficiaries until the petitioner has 

secured work for the H–1B beneficiary, 

including two potential approaches 

DHS is considering for future action. 

DHS is also seeking preliminary public 

input on ways to provide H–1B and 

other Form I–129 beneficiaries with 

notice of USCIS actions taken on 

petitions filed on their behalf. 

E. Future Rulemaking Actions 

After carefully considering any public 

comments received on the proposals in 

this NPRM, DHS may move to finalize 

the proposed provisions through one or 

more final rules, and may possibly do so 

in time for the fiscal year (FY) 2025 cap 

season, depending on agency resources. 

III. Background and Purpose 

A. Legal Authority 

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), Public Law 

107–296, 116 Stat. 2135, 6 U.S.C. 101 et 

seq. General authority for issuing this 

proposed 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 and establish such 

regulations as the Secretary deems 

necessary for carrying out such 

authority, 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.2 Further authority for these 

regulatory amendments is found in: 

• Section 101(a)(15) of the INA, 8 

U.S.C. 1101(a)(15), which establishes 


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3See U.S. Gov’t Accountability Off., GAO/PEMD– 

92–17, ‘‘Immigration and the Labor Market: 

Nonimmigrant Alien Workers in the United States,’’ 

at 18 (1992). 

4Up to 6,800 visas are set aside from the 65,000 

each fiscal year for the H–1B1 visa program under 

terms of the legislation implementing the U.S.-Chile 

and U.S.-Singapore free trade agreements. See INA 

sections 101(a)(15)(H)(i)(b1), 214(g)(8), 8 U.S.C. 

1101(a)(15)(H)(i)(b1), 1184(g)(8). 

5The 65,000 annual H–1B numerical limitation 

was increased for FYs 1999–2003. See INA section 

214(g)(1)(A), 8 U.S.C. 1184(g)(1)(A), as amended by 

section 411 of the ACWIA, Public Law 105–277, 

div. C, tit. IV, 112 Stat. 2681, and the American 

Competitiveness in the Twenty-first Century Act of 

2000 (AC21), Public Law 106–313, 114 Stat. 1251, 

as amended by the 21st Century Department of 

Justice Appropriations Authorization Act, Public 

Law 107–273, 116 Stat. 1758 (2002). Subsequent to 

IMMACT 90, Congress also created several 

exemptions from the 65,000 numerical limitation. 

See INA section 214(g)(5), 8 U.S.C. 1184(g)(5). 

6See 144 Cong. Rec. at S12749 (statement of Sen. 

Abraham) (‘‘[T]his issue [of increasing H–1B visas] 

is not only about shortages, it is about opportunities 

for innovation and expansion.’’). 

7See INA section 214(g)(5)(C), 8 U.S.C. 

1184(g)(5)(C). This rule also may refer to the 20,000 

exemptions under section 214(g)(5)(C) from the H– 

1B regular cap as the ‘‘advanced degree exemption 

allocation’’ or ‘‘advanced degree exemption 

numerical limitation.’’ 

8See ‘‘Registration Requirement for Petitioners 

Seeking To File H–1B Petitions on Behalf of CapSubject Aliens,’’ 84 FR 888 (Jan. 31, 2019). 

classifications for noncitizens who are 

coming temporarily to the United States 

as nonimmigrants, including the H–1B 

classification, see INA section 

101(a)(15)(H)(i)(b), 8 U.S.C. 

1101(a)(15)(H)(i)(b); 

• Section 214(a)(1) of the INA, 8 

U.S.C. 1184(a)(1), which authorizes the 

Secretary to prescribe, by regulation, the 

time and conditions of the admission of 

nonimmigrants; 

• Section 214(c) of the INA, 8 U.S.C. 

1184(c), which, inter alia, authorizes the 

Secretary to prescribe how an importing 

employer may petition for 

nonimmigrant workers, including 

certain nonimmigrants described at 

sections 101(a)(a)(15)(H), (L), (O), and 

(P), 8 U.S.C. 1101(a)(15)(H), (L), (O), and 

(P); the information that an importing 

employer must provide in the petition; 

and certain fees that are required for 

certain nonimmigrant petitions; 

• Section 214(e) of the INA, 8 U.S.C. 

1184(e), which provides for the 

admission of citizens of Canada or 

Mexico as TN nonimmigrants; 

• Section 214(g) of the INA, 8 U.S.C. 

1184(g), which, inter alia, 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), which sets forth the definition 

and requirements of a ‘‘specialty 

occupation’’; 

• Section 235(d)(3) of the INA, 8 

U.S.C. 1225(d)(3) (‘‘any immigration 

officer shall have the power to 

administer oaths and to take and 

consider evidence of or from any person 

touching the privilege of any alien or 

person he believes or suspects to be an 

alien to enter, reenter, transit through, 

or reside in the United States or 

concerning any matter which is material 

and relevant to the enforcement of this 

chapter and the administration of the 

Service.’’); 

• Section 248 of the INA, 8 U.S.C. 

1258, which authorizes a noncitizen to 

change from any nonimmigrant 

classification to any other nonimmigrant 

classification (subject to certain 

exceptions) 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, which recognizes the Secretary’s 

authority to extend employment 

authorization to noncitizens in the 

United States; 

• Section 287(b) of the INA, 8 U.S.C. 

1357(b), which authorizes the taking 

and consideration of evidence 

concerning any matter that is material or 

relevant to the enforcement of the INA; 

• Section 402 of the Homeland 

Security Act of 2002 (HSA), Public Law 

107–296, 116 Stat. 2135, 6 U.S.C. 202, 

which charges the Secretary with 

‘‘[e]stablishing and administering rules 

. . . governing the granting of visas or 

other forms of permission . . . to enter 

the United States’’ and ‘‘[e]stablishing 

national immigration enforcement 

policies and priorities,’’ id.; see also 

HSA sec. 428, 6 U.S.C. 236; and 

• Section 451(a)(3) and (b) of the 

HSA, 6 U.S.C. 271(a)(3) and (b), 

transferring to USCIS the authority to 

adjudicate petitions for nonimmigrant 

status, establish policies for performing 

that function, and set national 

immigration services policies and 

priorities. 

B. Background 

1. The H–1B Program 

The H–1B nonimmigrant visa program 

allows U.S. employers to temporarily 

employ foreign workers in specialty 

occupations, defined by statute as 

occupations that require the theoretical 

and practical application of a body of 

highly specialized knowledge and a 

bachelor’s or higher degree in the 

specific specialty, or its equivalent. See 

INA sections 101(a)(15)(H)(i)(b) and 

214(i), 8 U.S.C 1101(a)(15)(H)(i)(b) and 

1184(i). 

The Immigration Act of 1990 (Pub. L. 

101–649) (IMMACT 90) significantly 

reformed the H–1B program. To protect 

U.S. workers, IMMACT 90 required a 

certified LCA by the Secretary of Labor 

as a prerequisite for classification as an 

H–1B nonimmigrant. The LCA 

requirement, and the associated 

obligations the employer must attest to 

and comply with, including the 

prevailing or actual wage requirement, 

were intended to safeguard the wages 

and working conditions of U.S. 

workers.3 Through IMMACT 90, 

Congress set the current annual cap for 

the H–1B visa category at 65,000,4

which limited the number of 

beneficiaries who may be issued an 

initial H–1B visa or otherwise provided 

initial H–1B status each fiscal year.5

Prior to IMMACT 90, no limit existed on 

the number of initial H–1B visas that 

could be granted each fiscal year. 

Congressional deliberations ahead of the 

enactment of the American 

Competitiveness and Workforce 

Improvement Act of 1998 (ACWIA) 

describe the H–1B program’s purpose 

both as filling shortages and creating 

opportunities for innovation and 

expansion.6

Congress also set up several 

exemptions to the annual H–1B cap. For 

example, workers who will be employed 

at an institution of higher education (as 

defined in section 101(a) of the Higher 

Education Act of 1965, as amended) or 

a related or affiliated nonprofit entity, 

and workers who will be employed at a 

nonprofit or governmental research 

organization, are exempt from the cap. 

These exemptions are not numerically 

capped. See INA section 214(g)(5)(A)– 

(B), 8 U.S.C. 1184(g)(5)(A)–(B). Congress 

further provided an exemption from the 

numerical limits in INA section 

214(g)(1)(A), 8 U.S.C. 1184(g)(1)(A), for 

20,000 new H–1B visas, or grants of 

initial H–1B status, each fiscal year for 

foreign nationals who have earned a 

U.S. master’s or higher degree 

(‘‘advanced degree exemption’’).7 Cap 

exemptions are discussed in more detail 

below. 

To manage the annual cap, USCIS 

used a random selection process in 

years of high demand to determine 

which petitions were selected toward 

the projected number of petitions 

needed to reach the annual H–1B 

numerical allocations.8 In order to better 

manage the selection process, DHS 

created a registration requirement for H– 

1B cap-subject petitions, which was first 

implemented in 2020 for the FY 2021 


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9 Id. 

10See 8 CFR 214.2(h)(8)(iii). 

11See INA section 101(a)(15)(F)(i)–(ii), 8 U.S.C. 

1101(a)(15)(F)(i)–(ii); 8 CFR 214.2(f)(3). 

12See 8 CFR 214.2(f)(10); ‘‘Pre-Completion 

Interval Training; F–1 Student Work 

Authorization,’’ 57 FR 31954 (July 20, 1992). 

13See ‘‘Extending Period of Optional Practical 

Training by 17 Months for F–1 Nonimmigrant 

Students With STEM Degrees and Expanding CapGap Relief for All F–1 Students With Pending H– 

1B Petitions,’’ 73 FR 18944, 18947 (Apr. 8, 2008), 

vacated, Wash. All. of Tech. Workers v. U.S. Dep’t 

of Homeland Sec., 156 F. Supp. 3d 123 (D.D.C. 

2015), which amended the cap-gap extension. 

Through this interim final rule, DHS also made 

other amendments, such as eliminating the 

requirement that USCIS issue a Federal Register 

Notice in order to extend status for students with 

pending H–1B petitions. Although the 2008 rule 

was vacated, the cap-gap extension was reinstated 

through ‘‘Improving and Expanding Training 

Opportunities for F–1 Nonimmigrant Students With 

STEM Degrees and Cap-Gap Relief for All Eligible 

F–1 Students,’’ 81 FR 13039 (Mar. 11, 2016). 

14 Id. 

15 Id. 

16See ‘‘Improving and Expanding Training 

Opportunities for F–1 Nonimmigrant Students With 

STEM Degrees and Cap-Gap Relief for All Eligible 

F–1 Students,’’ 81 FR 13039 (Mar. 11, 2016). 

17See ‘‘Extending Period of Optional Practical 

Training by 17 Months for F–1 Nonimmigrant 

Students With STEM Degrees and Expanding CapGap Relief for All F–1 Students With Pending H– 

1B Petitions,’’ 74 FR 26514 (June 3, 2009) 

(correction); ‘‘Improving and Expanding Training 

Opportunities for F–1 Nonimmigrant Students With 

STEM Degrees and Cap-Gap Relief for All Eligible 

F–1 Students,’’ 81 FR 13039 (Mar. 11, 2016). 

Through this proposed rule, DHS amended the capgap procedures by no longer requiring USCIS to 

issue a Federal Register notice indicating that the 

H–1B cap must first be met (or would likely be met) 

for the current fiscal year. 

18See, e.g., Madkudu Inc., et al., v. U.S. 

Citizenship and Immigration Services, et al. 5:20– 

cv–2653–SVK (N.D. Ca. Aug. 20, 2021) Settlement 

Agreement at 4 (‘‘if the record shows that the 

petitioner would consider someone as qualified for 

the position based on less than a bachelor’s degree 

in a specialized field directly related to the position 

(e.g., an associate’s degree, a bachelor’s degree in a 

generalized field of study without a minor, major, 

concentration, or specialization in market research, 

marketing, or research methods (see Sections 

II.C.1.b and c), or a bachelor’s degree in a field of 

study unrelated to the position), then the position 

would not meet the statutory and regulatory 

definitions of specialty occupation at 8 U.S.C. 

1184(i)(1) and 8 CFR 214.2(h)(4)(ii).’’), https://

www.uscis.gov/sites/default/files/document/legaldocs/Madkudu-settlement-agreement.pdf (last 

visited Sep. 5, 2023). 

cap season.9 Under the registration 

requirement, prospective petitioners 

seeking to file H–1B cap-subject 

petitions (including petitions filed on 

behalf of beneficiaries eligible for the 

advanced degree exemption) must first 

electronically register and pay the 

associated H–1B registration fee for each 

prospective beneficiary. The random 

selection process is then conducted, 

selecting from the properly submitted 

registrations the number of registrations 

projected as needed to reach the 

numerical allocations.10 Only those 

prospective petitioners with selected 

registrations are eligible to file H–1B 

cap-subject petitions for the 

beneficiary(ies) named in their selected 

registration(s). The electronic 

registration process has streamlined the 

H–1B cap selection process by reducing 

paperwork and simplifying data 

exchange, and has provided overall cost 

savings to employers seeking to file H– 

1B cap-subject petitions and to USCIS. 

Prior to the registration requirement, 

petitioners were required to prepare and 

file complete H–1B petitions in order to 

be considered for the random selection 

process. 

2. The F–1 Program 

Section 101(a)(15)(F)(i) of the INA, 8 

U.S.C. 1101(a)(15)(F)(i), permits bona 

fide students to be temporarily admitted 

to the United States for the purpose of 

pursuing a full course of study at an 

established college, university, 

seminary, conservatory, academic high 

school, elementary school, or other 

academic institution or accredited 

language training program. Principal 

applicants are categorized as F–1 

nonimmigrants and their spouses and 

minor children may accompany or 

follow to join them as F–2 

dependents.11

In 1992, legacy Immigration and 

Naturalization Services (INS) amended 

its longstanding regulations relating to 

an employment program for students 

called Optional Practical Training (OPT) 

such that students in F–1 nonimmigrant 

status who have been enrolled on a fulltime basis for at least one full academic 

year in a college, university, 

conservatory, or seminary (which now 

must be certified by U.S. Immigration 

and Customs Enforcement’s (ICE’s) 

Student and Exchange Visitor Program 

(SEVP)) are allowed up to 12 months of 

OPT to work for a U.S. employer in a 

job directly related to the student’s 

major area of study.12 Employers of F– 

1 students already working for the 

employer under OPT, would often file 

petitions to change the students’ status 

to H–1B so that these nonimmigrant 

students may continue working in their 

current or a similar job.13 Many times, 

however, an F–1 student’s OPT 

authorization would expire prior to the 

student being able to assume the 

employment specified in the approved 

H–1B petition, creating a gap in 

employment.14 In order to remedy this, 

in 2008, DHS created the cap-gap 

extension to temporarily extend the 

period of authorized stay, as well as 

work authorization, of certain F–1 

students caught in a gap between the 

end of their program and the start date 

on their later-in-time approved, capsubject H–1B petition.15 The cap-gap 

extension provides a temporary bridge 

between F–1 and H–1B status, allowing 

students to remain in the United States 

between the end of their academic 

program and the beginning of the fiscal 

year, when the student’s H–1B status 

commences.16 DHS subsequently 

amended cap-gap procedures by 

extending the authorized period of stay 

and work authorization of any F–1 

student who is the beneficiary of a 

timely filed cap-subject H–1B petition 

that has been granted by, or remains 

pending with, USCIS, until October 1 of 

the fiscal year for which H–1B visa 

classification has been requested.17

IV. Discussion of the Proposed Rule 

A. Modernization and Efficiencies 

1. Amending the Definition of a 

‘‘Specialty Occupation’’ 

DHS proposes to revise the regulatory 

definition and standards for a ‘‘specialty 

occupation’’ to better align with the 

statutory definition of that term. Section 

101(a)(15)(H)(i)(b) of the INA, 8 U.S.C. 

1101(a)(15)(H)(i)(b), describes 

nonimmigrants coming to the United 

States temporarily to perform services in 

a specialty occupation. Section 214(i)(1) 

of the INA, 8 U.S.C. 1184(i)(1) states that 

the term ‘‘specialty occupation’’ means: 

‘‘an occupation that requires—(A) 

theoretical and practical application of 

a body of highly specialized knowledge, 

and (B) attainment of a bachelor’s or 

higher degree in the specific specialty 

(or its equivalent) as a minimum for 

entry into the occupation in the United 

States.’’ 

Currently, 8 CFR 214.2(h)(4)(ii) 

defines ‘‘specialty occupation’’ as an 

occupation which requires theoretical 

and practical application of a body of 

highly specialized knowledge in fields 

of human endeavor including, but not 

limited to, architecture, engineering, 

mathematics, physical sciences, social 

sciences, medicine and health, 

education, business specialties, 

accounting, law, theology, and the arts, 

and which requires the attainment of a 

bachelor’s degree or higher in a specific 

specialty, or its equivalent, as a 

minimum for entry into the occupation 

in the United States. 

This proposed rule would add 

language to this definition to codify 

existing USCIS practice that there must 

be a direct relationship between the 

required degree field(s) and the duties of 

the position; there may be more than 

one acceptable degree field for a 

specialty occupation; and a general 

degree is insufficient.18 Specifically, 


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19See Caremax Inc v. Holder, 40 F. Supp. 3d 

1182, 1187–88 (N.D. Cal. 2014). 

20Although a general-purpose bachelor’s degree, 

such as a degree in business or business 

administration, may be a legitimate prerequisite for 

a particular position, requiring such a degree, 

without more, will not justify a conclusion that a 

particular position qualifies for classification as a 

specialty occupation. See, e.g., Royal Siam Corp., 

484 F.3d 139, 147 (1st Cir. 2007) (‘‘The courts and 

the agency consistently have stated that, although 

a general-purpose bachelor’s degree, such as a 

business administration degree, may be a legitimate 

prerequisite for a particular position, requiring such 

a degree, without more, will not justify the granting 

of a petition for an H–1B specialty occupation 

visa.’’); Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 

1162–1164 (D. Minn. 1999) (the former INS did not 

depart from established policy or precedent when 

concluding that a general degree, such as a business 

administration degree, without more, does not 

constitute a degree in a specialized field); Raj & Co. 

v. USCIS, 85 F. Supp. 3d 1241, 1246 (W.D. Wash. 

2015) (it is ‘‘well-settled in the case law and 

USCIS’s reasonable interpretations of the regulatory 

framework’’ that ‘‘a generalized bachelor[’s] degree 

requirement is [in]sufficient to render a position 

sufficiently specialized to qualify for H–1B 

status.’’); Vision Builders, LLC v. USCIS, No. 19– 

CV–3159, 2020 WL 5891546, at *6 (D.D.C. Oct. 5, 

2020) (citing Raj). 

21See, e.g., Relx, Inc. v. Baran, 397 F. Supp. 3d 

41, 54 (D.D.C. 2019) (‘‘There is no requirement in 

the statute that only one type of degree be accepted 

for a position to be specialized.’’); Residential Fin. 

Corp. v. U.S. Citizenship & Immigration Servs., 839 

F. Supp. 2d 985, 997 (S.D. Ohio 2012) (stating that 

when determining whether a position is a specialty 

occupation, ‘‘knowledge and not the title of the 

degree is what is important’’). 

22The petitioner must also establish that its 

position meets one of the four criteria at proposed 

8 CFR 214.2(h)(4)(iii)(A), which is explained in 

detail below. 

DHS proposes to add language to the 

definition of ‘‘specialty occupation’’ 

clarifying that the required specialized 

studies must be directly related to the 

position. DHS also proposes to add 

language stating that a position is not a 

specialty occupation if attainment of a 

general degree, such as business 

administration or liberal arts, without 

further specialization, is sufficient to 

qualify for the position, and that a 

position may allow a range of degrees or 

apply multiple bodies of highly 

specialized knowledge, provided that 

each of those qualifying degree fields or 

each body of highly specialized 

knowledge is directly related to the 

position. 

A position for which a bachelor’s 

degree in any field is sufficient to 

qualify for the position, or for which a 

bachelor’s degree in a wide variety of 

fields unrelated to the position is 

sufficient to qualify, would not be 

considered a specialty occupation as it 

would not require the application of a 

body of highly specialized knowledge.19

Similarly, the amended definition 

clarifies that a position would not 

qualify as a specialty occupation if 

attainment of a general degree, without 

further specialization, is sufficient to 

qualify for the position.20 The burden of 

proof is on the petitioner to demonstrate 

that each qualifying degree field is 

directly related to the position. This is 

consistent with the statutory 

requirement that a degree be ‘‘in the 

specific specialty’’ and is USCIS’ longstanding practice. 

Under this proposed addition to 8 

CFR 214.2(h)(4)(ii), the petitioner would 

continue to have the burden of 

demonstrating that there is a direct 

relationship between the required 

degree in a specific specialty (in other 

words, the degree field(s) that would 

qualify someone for the position) and 

the duties of the position. In many 

cases, the relationship will be clear and 

relatively easy to establish. For example, 

it should not be difficult to establish 

that a required medical degree is 

directly related to the duties of a 

physician. Similarly, a direct 

relationship may readily be established 

between the duties of a lawyer and a 

required law degree and the duties of an 

architect and a required architecture 

degree. In other cases, the direct 

relationship may be less apparent, and 

the petitioner may have to explain and 

provide documentation to meet its 

burden of demonstrating the 

relationship. As in the past, to establish 

a direct relationship, the petitioner 

would need to provide information 

regarding the course(s) of study 

associated with the required degree, or 

its equivalent, and the duties of the 

proffered position, and demonstrate the 

connection between the course of study 

and the duties and responsibilities of 

the position. 

The requirement of a direct 

relationship between a degree in a 

specific specialty, or its equivalent, and 

the position, however, should not be 

construed as requiring a singular field of 

study.21 For example, for the position of 

electrical engineer, a degree in electrical 

engineering or electronics engineering 

may qualify a person for the position, 

and therefore a minimum of a bachelor’s 

or higher degree, or its equivalent, in 

more than one field of study may be 

recognized as satisfying the ‘‘degree in 

the specific specialty (or its equivalent)’’ 

requirement of section 214(i)(1)(B) of 

the INA, 8 U.S.C. 1184(i)(1)(B). In such 

a case, the ‘‘body of highly specialized 

knowledge’’ required by section 

214(i)(1)(A) of the INA, 8 U.S.C. 

1184(i)(1)(A), would be afforded by 

either degree, and each field of study 

accordingly would be in a ‘‘specific 

specialty’’ directly related to the 

position consistent with section 

214(i)(1)(B) of the INA, 8 U.S.C. 

1184(i)(1)(B). 

In cases where the petitioner lists 

degrees in multiple disparate fields of 

study as the minimum entry 

requirement for a position, the 

petitioner has the burden of establishing 

how each field of study is in a specific 

specialty providing ‘‘a body of highly 

specialized knowledge’’ directly related 

to the duties and responsibilities of the 

particular position. The petitioner must 

show that its position meets the 

requirements of sections 214(i)(1)(A) 

and (B) of the INA, 8 U.S.C. 

1184(i)(1)(A) and (B), and the regulatory 

definition.22

As such, under this proposed rule, a 

minimum entry requirement of a 

bachelor’s or higher degree, or its 

equivalent, in multiple disparate fields 

of study would not automatically 

disqualify a position from being a 

specialty occupation. For example, a 

petitioner may be able to establish that 

a bachelor’s degree in the specific 

specialties of either education or 

chemistry, each of which provide a 

body of highly specialized knowledge, 

is directly related to the duties and 

responsibilities of a chemistry teacher. 

In such a scenario, the ‘‘body of highly 

specialized knowledge’’ requirement of 

section 214(i)(1)(A) of the INA, 8 U.S.C. 

1184(i)(1)(A), and the ‘‘degree in the 

specific specialty’’ requirement of 

section 214(i)(1)(B) of the INA, 8 U.S.C. 

1184(i)(1)(B), would both be met by 

either degree and the chemistry teacher 

position listing multiple disparate fields 

of study would qualify as a specialty 

occupation. 

In determining whether a position 

involves a specialty occupation, USCIS 

currently interprets the ‘‘specific 

specialty’’ requirement in section 

214(i)(1)(B) of the INA, 8 U.S.C. 

1184(i)(1)(B), to relate back to the body 

of highly specialized knowledge 

requirement referenced in section 

214(i)(1)(A) of the INA, 8 U.S.C. 

1184(i)(1)(A), required by the specialty 

occupation in question. The ‘‘specific 

specialty’’ requirement is only met if the 

degree in a specific specialty or 

specialties, or its equivalent, provides a 

body of highly specialized knowledge 

directly related to the duties and 

responsibilities of the particular 

position as required by section 

214(i)(1)(A) of the INA, 8 U.S.C. 

1184(i)(1)(A). 

If the minimum entry requirement for 

a position is a general degree without 

further specialization or an explanation 

of what type of degree is required, the 

‘‘degree in the specific specialty (or its 

equivalent)’’ requirement of INA section 

214(i)(1)(B), 8 U.S.C. 1184(i)(1)(B), 


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23See Royal Siam Corp., 484 F.3d at 147. 

24The requirement of any engineering degree 

could include, for example, a chemical engineering 

degree, marine engineering degree, mining 

engineering degree, or any other engineering degree 

in a multitude of seemingly unrelated fields. 

25These examples refer to the educational 

credentials by the title of the degree for expediency. 

However, USCIS separately evaluates whether the 

beneficiary’s actual course of study is directly 

related to the duties of the position, rather than 

merely the title of the degree. When applicable, 

USCIS also will consider whether the beneficiary 

has the education, specialized training, and/or 

progressively responsible experience that is 

equivalent to completion of a U.S. baccalaureate or 

higher degree in the specialty occupation. See 8 

CFR 214.2(h)(4)(iii)(C)(4). 

26See Merriam-Webster Dictionary at https://

www.merriam-webster.com/dictionary/normal (last 

visited Aug. 24, 2023). 

27See Innova, 983 F.3d at 432 (‘‘There is no 

daylight between typically needed, per the OOH, 

and normally required, per the regulatory criteria. 

‘Typically’ and ‘normally’ are synonyms.’’). 

28See USCIS, ‘‘H–1B Specialty Occupations, DOD 

Cooperative Research and Development Project 

Workers, and Fashion Models,’’ https://

www.uscis.gov/working-in-the-united-states/h-1bspecialty-occupations (last updated Feb. 8, 2023). 

29See USCIS, ‘‘Rescission of 2017 Policy 

Memorandum PM–602–0142,’’ PM–602–0142.1, 

https://www.uscis.gov/sites/default/files/document/ 

memos/PM-602-0142.1_RescissionOfPM-602- 

0142.pdf (Feb. 3, 2021). 

30The 2017 memorandum instructed officers not 

to ‘‘generally consider the position of [computer] 

programmer to qualify as a specialty occupation,’’ 

specifically where the proffered position did not 

have a minimum entry requirement of a U.S. 

bachelor’s or higher and indicated that the 

petitioner must provide other evidence to establish 

that the particular position is one in a specialty 

occupation. See USCIS, Recission of the December 

22, 2000 ‘‘Guidance memo on H1B computer 

related positions’’, PM–602–0142, https://

www.uscis.gov/sites/default/files/document/ 

memos/PM-6002-0142-H-1BComputerRelated

PositionsRecission.pdf (Mar. 31, 2017). 

31See Innova, 983 F.3d at 432 (emphasis in 

original). 

would not be satisfied. For example, a 

requirement of a general business degree 

for a marketing position would not 

satisfy the specific specialty 

requirement. In this instance, the 

petitioner would not satisfactorily 

demonstrate how a required general 

business degree provides a body of 

highly specialized knowledge that is 

directly related to the duties and 

responsibilities of a marketing 

position.23

Similarly, a petition with a 

requirement of any engineering degree 

in any field of engineering for a position 

of software developer would generally 

not satisfy the statutory requirement, as 

it is unlikely the petitioner could 

establish how the fields of study within 

any engineering degree provide a body 

of highly specialized knowledge directly 

relating to the duties and 

responsibilities of the software 

developer position.24 If an individual 

could qualify for a petitioner’s software 

developer position based on having a 

seemingly unrelated engineering degree, 

then it cannot be concluded that the 

position requires the application of a 

body of highly specialized knowledge 

and a degree in a specific specialty, 

because someone with an entirely or 

largely unrelated degree may qualify to 

perform the job.25 In such a scenario, 

the requirements of INA sections 

214(i)(1)(A) and (B), 8 U.S.C. 

1184(i)(1)(A) and (B), would not be 

satisfied. 

Further, if a position requires a 

bachelor’s degree in an unspecified 

‘‘quantitative field’’ (which could 

include mathematics, statistics, 

economics, accounting, or physics) the 

petitioner must identify specific 

specialties, such as the majors or degree 

fields, within the wide variety of 

‘‘quantitative fields’’ and establish how 

each identified degree in a specific 

specialty provides a body of highly 

specialized knowledge, consistent with 

INA section 214(i)(1)(A), 8 U.S.C. 

1184(i)(1)(A), that is directly related to 

the duties and responsibilities of the 

software developer position. While a 

position may allow a range of degrees, 

and apply multiple bodies of highly 

specialized knowledge, each of those 

qualifying degree fields or each body of 

highly specialized knowledge must be 

directly related to the proffered 

position. 

2. Amending the Criteria for Specialty 

Occupation Positions 

Under INA section 214(i)(1), 8 U.S.C. 

1184(i)(1), a ‘‘specialty occupation’’ 

requires attainment of a bachelor’s or 

higher degree in the specific specialty 

(or its equivalent) as a minimum for 

entry into the occupation in the United 

States. The current regulatory criteria at 

8 CFR 214.2(h)(4)(iii)(A)(1) states that a 

bachelor’s degree is ‘‘normally’’ 

required. To provide additional 

guidance to adjudicators, attorneys, and 

the public, DHS is proposing to define 

the term ‘‘normally’’ at proposed 8 CFR 

214.2(h)(4)(iii)(A)(5) to state that, for 

purposes of the criteria in this 

provision, ‘‘normally’’ means 

‘‘conforming to a type, standard, or 

regular pattern’’ and is ‘‘characterized 

by that which is considered usual, 

typical, common, or routine.’’ 26 The 

proposed regulation also clarifies that 

‘‘[n]ormally does not mean always.’’ For 

these purposes, there is no significant 

difference between the synonyms 

‘‘normal,’’ ‘‘usual,’’ ‘‘typical,’’ 

‘‘common,’’ or ‘‘routine.’’ 27 These 

synonyms illustrate that a description of 

an occupation that uses a synonym for 

the word ‘‘normally’’ in describing 

whether a bachelor’s or higher degree is 

required for the occupation can support 

a finding that a degree is ‘‘normally’’ 

required. By the same token, other 

synonyms for the word ‘‘normally’’ that 

are not listed in proposed 8 CFR 

214.2(h)(4)(iii)(A)(5), such as ‘‘mostly’’ 

or ‘‘frequently,’’ also can support a 

finding that a degree is ‘‘normally’’ 

required. This proposed change clarifies 

that the petitioner does not have to 

establish that the bachelor’s degree in a 

specific specialty or its equivalent is 

always a minimum requirement for 

entry into the occupation in the United 

States. This is consistent with both 

USCIS’s current practice, as reflected by 

the statement on the USCIS website that 

‘‘normally,’’ ‘‘common,’’ and ‘‘usually’’ 

are not interpreted to mean ‘‘always,’’ 28

and USCIS’s rescission of a 2017 policy 

memorandum guiding officers on the 

interpretation of the Occupational 

Outlook Handbook’s with respect to the 

computer programmer occupation.29

USCIS rescinded the 2017 policy 

memorandum following the decision of 

the U.S. Court of Appeals for the Ninth 

Circuit in Innova Solutions v. Baran, 

983 F.3d 428 (9th Cir. 2020).30 As the 

court stated in Innova, ‘‘the fact that 

some computer programmers are hired 

without a bachelor’s degree is entirely 

consistent with a bachelor’s degree 

‘normally [being] the minimum 

requirement for entry.’ ’’ 31 USCIS 

currently applies this same rationale to 

other occupations. By proposing to 

codify USCIS’s current practice at 

proposed 8 CFR 214.2(h)(4)(iii)(A)(5), 

DHS seeks to provide H–1B petitioners 

with more certainty as to what 

adjudication standards apply to their 

petitions. 

In addition, DHS proposes to codify 

its current practices by revising the 

criteria for a specialty occupation at 

current 8 CFR 214.2(h)(4)(iii)(A). First, 

DHS proposes to replace the phrase ‘‘To 

qualify as a specialty occupation, the 

position must meet one of the following 

criteria’’ with ‘‘A position does not meet 

the definition of specialty occupation in 

paragraph (h)(4)(ii) of this section unless 

it also satisfies at least one of the 

following criteria at paragraphs 

(h)(4)(iii)(A)(1) through (4) of this 

section.’’ This proposed change would 

clarify that meeting one of the 

regulatory criteria is a necessary part 

of—but not always sufficient for— 

demonstrating that a position qualifies 

as a specialty occupation. This is not 

new; the criteria at current 8 CFR 

214.2(h)(4)(iii)(A) must be construed in 

harmony with and in addition to other 

controlling regulatory provisions and 


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32Numerous AAO non-precedent decisions 

spanning several decades have explained that the 

criteria at 8 CFR 214.2(h)(4)(iii)(A) must logically be 

read together with section 214(i)(1) of the Act and 

8 CFR 214.2(h)(4)(ii), and that the regulatory criteria 

must be construed in harmony with the thrust of 

the related provisions and with the statute as a 

whole. See, e.g., In Re. ---, 2009 WL 4982420 (AAO 

Aug. 21, 2009); In Re. ---, 2009 WL 4982607 (AAO 

Sept. 3, 2009); In Re. 15542, 2016 WL 929725 (AAO 

Feb. 22, 2016); In Re. 17442092, 2021 WL 4708199 

(AAO Aug. 11, 2021); In Re. 21900502, 2022 WL 

3211254 (AAO July 7, 2022). 

33See Defensor v. Meissner, 201 F.3d 384, 387 

(5th Cir. 2000) (stating that current 8 CFR 

214.2(h)(4)(iii)(A) ‘‘appears to implement the 

statutory and regulatory definition of specialty 

occupation through a set of four different standards. 

However, this section might also be read as merely 

an additional requirement that a position must 

meet, in addition to the statutory and regulatory 

definition. The ambiguity stems from the 

regulation’s use of the phrase ‘to qualify as.’ In 

common usage, this phrase suggests that whatever 

conditions follow are both necessary and sufficient 

conditions. Strictly speaking, however, the language 

logically entails only that whatever conditions 

follow are necessary conditions. . . . If 

§ 214.2(h)(4)(iii)(A) is read to create a necessary and 

sufficient condition for being a specialty 

occupation, the regulation appears somewhat at 

odds with the statutory and regulatory definitions 

of ‘specialty occupation.’ ’’). 

34 DHS generally determines a position’s 

occupation or occupational category by looking at 

the standard occupational classification (SOC) code 

designated on the LCA. 

with the statute as a whole.32 In 2000, 

the U.S. Court of Appeals for the Fifth 

Circuit highlighted the ambiguity of the 

regulatory provision’s current wording, 

and petitioners have misinterpreted the 

criteria in 8 CFR 214.2(h)(4)(iii)(A) as 

setting forth both the necessary and 

sufficient conditions to qualify as a 

specialty occupation, a reading that 

resulted in some positions meeting one 

condition of 8 CFR 214.2(h)(4)(iii)(A), 

but not the definition as a whole.33

These proposed changes would 

eliminate this source of confusion. 

DHS is also proposing to amend 8 

CFR 214.2(h)(4)(iii)(A)(1) by adding 

‘‘U.S.’’ to ‘‘baccalaureate,’’ and replacing 

the word ‘‘position’’ with ‘‘occupation,’’ 

so that it sets forth ‘‘the minimum 

requirement for entry into the particular 

occupation in which the beneficiary 

will be employed.’’ See proposed 8 CFR 

214.2(h)(4)(iii)(A)(1). Adding ‘‘U.S.’’ 

clarifies that a baccalaureate degree 

must be a U.S. degree (or its foreign 

equivalent), and that a foreign 

baccalaureate is not necessarily an 

equivalent. DHS is proposing this 

change to codify longstanding practice 

and to reflect a consistent standard that 

will align the regulation discussing the 

position requirement at 8 CFR 

214.2(h)(4)(iii)(A)(1) with the statutory 

requirement of ‘‘a bachelor’s or higher 

degree in the specific specialty (or its 

equivalent) as a minimum for entry into 

the occupation in the United States’’ at 

INA section 214(i)(1)(B), 8 U.S.C. 

1184(i)(1)(B), as well as the regulatory 

requirement that an H–1B beneficiary 

must have the equivalent of a U.S. 

baccalaureate degree at 8 CFR 

214.2(h)(4)(iii)(C)(1). Replacing 

‘‘position’’ with ‘‘occupation’’ would 

clarify that the first criterion can be 

satisfied if the petitioner can show that 

its position falls within an occupational 

category for which all positions within 

that category have a qualifying 

minimum degree requirement.34 This 

revision would provide added clarity to 

the regulatory criteria as the criteria 

would flow from general to specific (i.e., 

occupation level to industry to 

employer to position). If the occupation 

requires at least a bachelor’s degree in 

a specific specialty (e.g., architect or 

aeronautical engineer) then it 

necessarily follows that a position in 

one of those occupations would require 

a degree and qualify as a specialty 

occupation. If the occupation does not 

require at least a bachelor’s degree in a 

specific specialty, then the petitioner 

could submit evidence to show that at 

least a bachelor’s degree in a specific 

specialty (or its equivalent) is required 

based on U.S. industry norms, the 

employer’s particular requirement, or 

because of the particulars of the specific 

position. See proposed 8 CFR 

214.2(h)(4)(iii)(A)(2) through (4). USCIS 

will continue its practice of consulting 

the U.S. Department of Labor’s (DOL’s) 

Occupational Outlook Handbook and 

other reliable and informative sources 

submitted by the petitioner, to assist in 

its determination regarding the 

minimum entry requirements for 

positions located within a given 

occupation. 

DHS further proposes to amend 8 CFR 

214.2(h)(4)(iii)(A)(2) by consolidating 

this criterion’s second prong into the 

fourth criterion. See proposed 8 CFR 

214.2(h)(4)(iii)(A)(2). The second prong 

of current 8 CFR 214.2(h)(4)(iii)(A)(2), 

which focuses on a position’s 

complexity or uniqueness, is similar to 

current 8 CFR 214.2(h)(4)(iii)(A)(4), 

which focuses on a position’s 

complexity and specialization. In 

practice, they are frequently 

consolidated into the same analysis. 

This amendment would streamline both 

criteria, as well as the explanation and 

analysis in written decisions issued by 

USCIS pertaining to specialty 

occupation determinations, as such 

decisions discuss all four criteria and 

are necessarily repetitive because of the 

existing overlap between 8 CFR 

214.2(h)(4)(iii)(A)(2) and (4). This 

amendment would also simplify the 

analysis because petitioners may 

demonstrate eligibility under this 

criterion if the position is ‘‘so 

specialized, complex, or unique’’, as 

opposed to ‘‘so complex or unique’’ 

under current 8 CFR 

214.2(h)(4)(iii)(A)(2) and ‘‘so specialized 

and complex’’ under current 8 CFR 

214.2(h)(4)(iii)(A)(4) (emphasis added). 

Notwithstanding these amendments, the 

analytical framework of the first prong 

of proposed 8 CFR 214.2(h)(4)(iii)(A)(2) 

generally would remain the same. Thus, 

a petitioner would satisfy proposed 8 

CFR 214.2(h)(4)(iii)(A)(2) if it 

demonstrates that the specialty degree 

requirement is normally the minimum 

entry requirement for: (1) parallel 

positions; (2) at similar organizations; 

(3) within the employer’s industry in 

the United States. This criterion is 

intended for the subset of positions with 

minimum entry requirements that are 

determined not necessarily by 

occupation, but by specific industry 

standards. For this criterion, DHS would 

continue its practice of consulting 

DOL’s Occupational Outlook Handbook 

and other reliable and informative 

sources, such as information from the 

industry’s professional association or 

licensing body, submitted by the 

petitioner. 

USCIS proposes to change the third 

criterion at proposed 8 CFR 

214.2(h)(4)(iii)(A)(3), in part, from 

stating that the employer normally 

requires a ‘‘degree or its equivalent for 

the position’’ to stating that the 

employer normally requires a ‘‘U.S. 

baccalaureate or higher degree in a 

directly related specific specialty, or its 

equivalent, for the position.’’ The 

additional phrase about a ‘‘degree in a 

directly related specific specialty’’ 

would reinforce the existing 

requirements for a specialty occupation, 

in other words, that the position itself 

must require a directly related specialty 

degree, or its equivalent, to perform its 

duties. See also proposed 8 CFR 

214.2(h)(4)(iii)(A)(3). Employers 

requiring degrees as a proxy for a 

generic set of skills would not meet this 

standard. Employers listing a 

specialized degree as a hiring preference 

would not meet this standard either. If 

USCIS were constrained to recognize a 

position as a specialty occupation 

merely because an employer has an 

established practice of demanding 

certain educational requirements for the 

offered position—without consideration 

of whether the position actually requires 

the application of a body of highly 

specialized knowledge consistent with 

the degree requirement—then any 

beneficiary with a bachelor’s degree in 

a specific specialty could be brought 


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35See Defensor, 201 F.3d at 388 (noting ‘‘If only 

[the employer]’s requirements could be considered, 

then any alien with a bachelor’s degree could be 

brought into the United States to perform a nonspecialty occupation, so long as that person’s 

employment was arranged through an employment 

agency which required all clients to have bachelor’s 

degrees. Thus, aliens could obtain six year visas for 

any occupation, no matter how unskilled, through 

the subterfuge of an employment agency. This 

result is completely opposite the plain purpose of 

the statute and regulations, which is to limit H1– 

B [sic] visas to positions which require specialized 

experience and education to perform.’’). 

36First-time hirings are not precluded from 

qualifying under one of the other criteria. 

37The full proposed regulation would read: ‘‘The 

employer, or third party if the beneficiary will be 

staffed to that third party, normally requires a U.S. 

baccalaureate or higher degree in a directly related 

specific specialty, or its equivalent, for the 

position.’’ 

38See USCIS, ‘‘USCIS Final Guidance on When 

to File an Amended or New H–1B Petition After 

Matter of Simeio Solutions, LLC,’’ PM–602–0120 

(July 21, 2015), https://www.uscis.gov/sites/default/ 

files/document/memos/2015-0721_Simeio_

Solutions_Transition_Guidance_Memo_Format_7_

21_15.pdf. 

39 20 CFR 655.731(a)(2)(ii) states that, if the job 

opportunity is not covered by a collective 

bargaining agreement, the prevailing wage shall be 

the arithmetic mean of the wages of workers 

similarly employed, except that the prevailing wage 

shall be the median when provided by paragraphs 

(a)(2)(ii)(A), (b)(3)(iii)(B)(2), and (b)(3)(iii)(C)(2) of 

20 CFR 655.731. An employer is not permitted to 

pay a wage that is lower than a wage required under 

any other applicable Federal, State or local law. 

40Pursuant to 20 CFR 655.715, ‘‘Area of intended 

employment’’ means the area within normal 

commuting distance of the place (address) of 

employment where the H–1B nonimmigrant is or 

will be employed. There is no rigid measure of 

distance which constitutes a normal commuting 

distance or normal commuting area, because there 

may be widely varying factual circumstances among 

different areas (e.g., normal commuting distances 

might be 20, 30, or 50 miles). If the place of 

employment is within a Metropolitan Statistical 

Area (MSA) or a Primary Metropolitan Statistical 

Area (PMSA), any place within the MSA or PMSA 

is deemed to be within normal commuting distance 

of the place of employment; however, all locations 

within a Consolidated Metropolitan Statistical Area 

(CMSA) will not automatically be deemed to be 

within normal commuting distance. The borders of 

MSAs and PMSAs are not controlling with regard 

to the identification of the normal commuting area; 

a location outside of an MSA or PMSA (or a CMSA) 

may be within normal commuting distance of a 

location that is inside (e.g., near the border of) the 

MSA or PMSA (or CMSA). 

41See 20 CFR 655.731(a)(2). 

into the United States to perform work 

in a non-specialty occupation if the 

employer arbitrarily imposed such a 

degree requirement for the non-specialty 

occupation position.35 With respect to 

an employer’s normal employment 

practices, a petitioner could submit 

evidence of an established recruiting 

and hiring practice to establish its 

requirements for the position. Keeping 

the word ‘‘normally’’ in this criterion is 

intended to preserve flexibility for 

petitioners, although petitioners seeking 

to fill a position for the first time 

generally would not be able to 

demonstrate an established practice.36

Furthermore, DHS proposes to add 

‘‘or third party if the beneficiary will be 

staffed to that third party’’ to proposed 

8 CFR 214.2(h)(4)(iii)(A)(3) 37 to clarify 

that it is the third party’s requirements, 

not the petitioning employer’s, that are 

most relevant if the beneficiary would 

be staffed to a third party. This change 

would be consistent with proposed 8 

CFR 214.2(h)(4)(i)(B)(3), which clarifies 

that when a beneficiary is staffed to a 

third party, it is the requirements of that 

third party, and not the petitioner, that 

are most relevant when determining 

whether the position is a specialty 

occupation. This proposed revision 

would define ‘‘staffed’’ in the same way 

to mean that the beneficiary would be 

contracted to fill a position in the third 

party’s organization. The criterion at 

proposed 8 CFR 214.2(h)(4)(iii)(A)(4) 

incorporates the second prong of current 

8 CFR 214.2(h)(4)(iii)(A)(2). See 

proposed 8 CFR 214.2(h)(4)(iii)(A)(4). 

DHS proposes no other substantive 

changes to this criterion. Thus, the 

fourth criterion could be satisfied if the 

petitioner demonstrates that the 

proffered position’s job duties are so 

specialized, complex, or unique that 

they necessitate the attainment of a U.S. 

bachelor’s degree in a directly related 

specific specialty, or its equivalent. 

3. Amended Petitions 

DHS proposes to clarify when an 

amended or new H–1B petition must be 

filed due to a change in an H–1B 

worker’s place of employment. 

Specifically, this rule proposes to clarify 

that any change of work location that 

requires a new LCA is itself considered 

a material change and therefore requires 

the petitioning employer to file an 

amended or new petition with USCIS 

before the H–1B worker may perform 

work under the changed conditions. 

Further, DHS proposes to consolidate 

and clarify guidance on when an 

amended or new petition is required for 

short-term placement of H–1B workers 

at a worksite not listed on the approved 

petition or corresponding LCA.38 These 

proposed changes are not intended to 

depart from existing regulations and 

guidance, but rather, seek to consolidate 

existing requirements and make clear 

when a petitioner must submit an 

amended or new petition. DHS 

regulations already require that 

petitioning employers file an amended 

or new H–1B petition for all situations 

involving a material change to the 

conditions of H–1B employment. 

Specifically, 8 CFR 214.2(h)(2)(i)(E) 

states that a ‘‘petitioner shall file an 

amended or new petition, with fee, with 

the Service Center where the original 

petition was filed to reflect any material 

changes in the terms and conditions of 

employment or training or the alien’s 

eligibility as specified in the original 

approved petition.’’ That regulation goes 

on to add that if the amended or new 

petition is an H–1B petition, a new LCA 

must accompany the petition. 

Additionally, 8 CFR 214.2(h)(11)(i)(A) 

requires a petitioner to ‘‘immediately 

notify’’ USCIS of a change in the terms 

and conditions of employment of a 

beneficiary which may affect eligibility 

for H–1B status. However, USCIS seeks 

to clarify when an amended or new 

petition must be filed or when a 

petitioner need not file an amended 

petition. To find relevant requirements, 

H–1B petitioners and USCIS officers 

currently must look to various sources, 

including USCIS policy guidance, DOL 

regulations, and DOL guidance. DHS 

seeks to make its regulations relating to 

amended or new H–1B petitions more 

comprehensive and useful by 

incorporating relevant requirements into 

proposed 8 CFR 214.2(h)(2)(i)(E)(2). 

Under 8 CFR 214.2(h)(4)(i)(B), an H– 

1B petition for a specialty occupation 

worker must include a certified LCA 

from DOL. DOL regulation at 20 CFR 

655.731 provides details on the LCA 

requirements, including that an 

employer seeking to employ an H–1B 

worker in a specialty occupation must 

attest on the LCA that it will pay the H– 

1B worker the required wage rate. The 

required wage rate is the higher of either 

the prevailing wage 39 for the 

occupational classification, or the actual 

wage paid by the employer to similarly 

situated employees, in the geographic 

area of intended employment.40 The 

LCA seeks to protect U.S. workers and 

their wages by disincentivizing hiring 

foreign workers at lower wages. A key 

component to filing an LCA is 

determining the appropriate wage to list 

on the application. Generally, a 

petitioning employer is not required to 

use any specific methodology to 

determine the prevailing wage and may 

utilize a wage obtained from the Office 

of Foreign Labor Certification, an 

independent authoritative source, or 

other legitimate sources of wage data.41

While there are many factors that may 

be considered when determining the 

prevailing wage, one of the most 

significant is the geographic area where 

the H–1B worker will perform their 

duties. Because prevailing wages differ, 

often significantly, from location to 

location, a change in geographic area of 

intended employment that goes beyond 

the current metropolitan statistical area 


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42See USCIS, ‘‘USCIS Final Guidance on When 

to File an Amended or New H–1B Petition After 

Matter of Simeio Solutions, LLC,’’ PM–602–0120 

(July 21, 2015), https://www.uscis.gov/sites/default/ 

files/document/memos/2015-0721_Simeio_

Solutions_Transition_Guidance_Memo_Format_7_

21_15.pdf. 

43See id. at 7. 44See id. 45See also 20 CFR 655.734; DOL, Wage and Hour 

Division, ‘‘Fact Sheet #62J: What does ‘place of 

employment’ mean?’’ (July 2008), https://

www.dol.gov/agencies/whd/fact-sheets/62j-h1bworksite (‘‘The employer need not obtain a new 

LCA for another worksite within the geographic 

area of intended employment where the employer 

already has an existing LCA for that area.’’). 46See 20 CFR 655.734(a)(2). 

(MSA) often will have an impact on the 

prevailing wage, requiring a new LCA. 

In its precedent decision Matter of 

Simeio Solutions, LLC, 26 I&N Dec. 542 

(AAO 2015), USCIS’s Administrative 

Appeals Office (AAO) held that a 

change in geographic area of 

employment that would require a new 

LCA is considered a material change for 

purposes of 8 CFR 214.2(h)(2)(i)(E) and 

(h)(11)(i)(A) because the new LCA may 

impact eligibility under 8 CFR 

214.2(h)(4)(i)(B)(1). For example, a 

change in location may impact 

eligibility if the new location is in an 

MSA with a higher wage. USCIS 

provided additional guidance 

implementing Matter of Simeio 

Solutions in July 2015 in its policy 

memorandum ‘‘USCIS Final Guidance 

on When to File an Amended or New 

H–1B Petition After Matter of Simeio 

Solutions, LLC.’’ 42

In proposed 8 CFR 214.2(h)(2)(i)(E)(2), 

DHS proposes to specify that ‘‘Any 

change in the place of employment to a 

geographical area that requires a 

corresponding labor condition 

application to be certified to USCIS is 

considered a material change and 

requires an amended or new petition to 

be filed with USCIS before the H–1B 

worker may begin work at the new place 

of employment.’’ Further, DHS proposes 

to specify in proposed 8 CFR 

214.2(h)(2)(i)(E)(2) that ‘‘[t]he amended 

or new petition must be properly filed 

before the material change(s) takes 

place’’. This would codify current 

USCIS practice as articulated in its 

policy memorandum ‘‘USCIS Final 

Guidance on When to File an Amended 

or New H–1B Petition After Matter of 

Simeio Solutions, LLC,’’ which 

discusses the ‘‘USCIS position that H– 

1B petitioners are required to file an 

amended or new petition before placing 

an H–1B employee at a new place of 

employment not covered by an existing, 

approved H–1B petition.’’ As with 

current USCIS practice, proposed 8 CFR 

214.2(h)(2)(i)(E)(2) would allow the 

worker to begin working under the 

materially changed terms and 

conditions of employment upon the 

filing of the amended or new petition, 

assuming all other requirements and 

terms of eligibility are met. They would 

not need to wait for a final decision on 

the amended or new petition in order to 

begin working if eligible in accordance 

with existing portability provisions at 8 

CFR 214.2(h)(2)(i)(H). If while the 

amended or new petition is pending 

adjudication another material change 

occurs, an employer must file another 

amended or new petition to account for 

the new changes.43 If that amended or 

new petition is denied, the H–1B worker 

generally may return to the position and 

worksite listed on the most recently 

approved petition as long as that 

petition and corresponding LCA are still 

valid.44

Proposed 8 CFR 214.2(h)(2)(i)(E)(2) 

would also set forth limited 

circumstances in which a change to the 

beneficiary’s place of employment 

would not require the petitioner to file 

an amended petition. Proposed 8 CFR 

214.2(h)(2)(i)(E)(2)(i) states that moving 

a beneficiary to a new job location 

within the same area of intended 

employment as listed on the LCA would 

not require an amended petition, 

assuming there are no other material 

changes. This would be consistent with 

INA section 212(n)(4), which provides 

that a change in the worksite location 

within the same MSA of the existing 

LCA would generally be deemed to be 

within the area of employment.45 Note 

that proposed 8 CFR 

214.2(h)(2)(i)(E)(2)(i) does not purport to 

set forth all relevant DOL requirements, 

such as the requirement that the 

petitioning employer post notice of the 

LCA, either electronically or in hardcopy, in the new work location on or 

before the date that the H–1B worker 

performs any work at the new 

location.46

Additionally, proposed 8 CFR 

214.2(h)(2)(i)(E)(2)(ii) would set forth 

the specific durations for short-term 

placements that would not require an 

amended or new petition, assuming 

there are no other material changes. 

This would be consistent with DOL 

regulations at 20 CFR 655.735 in which 

short-term placements of less than 30 

days, or in some cases 60 days, do not 

require a new LCA or an amended or 

new petition, provided there are no 

material changes. 

Proposed 8 CFR 

214.2(h)(2)(i)(E)(2)(iii) would clarify that 

an amended or new petition would not 

be required when a beneficiary is going 

to a non-worksite location to participate 

in employee development, will be 

spending little time at any one location, 

or will perform a peripatetic job. 

Proposed 8 CFR 214.2(h)(2)(i)(E)(2)(iii) 

provides examples of ‘‘peripatetic jobs’’ 

including situations where the job is 

primarily at one location, but the 

beneficiary occasionally travels for short 

periods to other locations on a casual, 

short-term basis, which can be recurring 

but not excessive (i.e., not exceeding 5 

consecutive workdays for any one visit 

by a peripatetic worker, or 10 

consecutive workdays for any one visit 

by a worker who spends most work time 

at one location and travels occasionally 

to other locations). Proposed 8 CFR 

214.2(h)(2)(i)(E)(2)(iii) would be 

consistent with DOL regulations at 20 

CFR 655.715, which sets forth several 

criteria for what would not constitute a 

‘‘place of employment’’ or ‘‘worksite,’’ 

as well as what would constitute an 

‘‘employee developmental activity,’’ for 

purposes of requiring a new LCA. 

Note that proposed 8 CFR 

214.2(h)(2)(i)(E)(2) would not codify all 

relevant considerations related to when 

to file an amended petition. 

Stakeholders should still consult DOL 

regulations and policy guidance when 

considering if an amended petition is 

necessary. Nevertheless, DHS believes 

its proposed changes to 8 CFR 

214.2(h)(2)(i)(E)(2) would still be 

beneficial by providing additional 

clarity about when a change in an H–1B 

worker’s place of employment 

constitutes a material change requiring 

an amended or new petition. 

DHS proposes to revise and 

redesignate current 8 CFR 

214.2(h)(2)(i)(E) as proposed 8 CFR 

214.2(h)(2)(i)(E)(1) so that this provision 

would be applicable to all H 

classifications, while proposed 8 CFR 

214.2(h)(2)(i)(E)(2) would be specific to 

H–1B nonimmigrants. In proposed 8 

CFR 214.2(h)(2)(i)(E)(1), DHS proposes 

minor changes to clarify that an 

amended or new H–1B petition requires 

a current or new certified labor 

condition application. 


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47See USCIS, ‘‘The Significance of a Prior CIS 

Approval of a Nonimmigrant Petition in the Context 

of a Subsequent Determination Regarding Eligibility 

for Extension of Petition Validity,’’ HQPRD 72/11.3 

(Apr. 23, 2004). 

48See USCIS, ‘‘Rescission of Guidance Regarding 

Deference to Prior Determinations of Eligibility in 

the Adjudication of Petitions for Extension of 

Nonimmigrant Status,’’ PM–602–0151 (Oct. 23, 

2017). 

49See USCIS, ‘‘Deference to Prior Determinations 

of Eligibility in Requests for Extensions of Petition 

Validity, Policy Alert,’’ PA–2021–05 (April 27, 

2021), https://www.uscis.gov/sites/default/files/ 

document/policy-manual-updates/20210427- 

Deference.pdf (last visited on Mar. 23, 2023). 

50See USCIS Policy Manual, Volume 2, 

‘‘Nonimmigrants,’’ Part A, ‘‘Nonimmigrant Policies 

and Procedures’’, Chapter 4, ‘‘Extension of Stay, 

Change of Status, and Extension of Petition 

Validity,’’ Section B, ‘‘Extension of Petition 

Validity,’’ https://www.uscis.gov/policy-manual/ 

volume-2-part-a-chapter-4. 

51See id. 

52This is subject to the exception in 8 CFR 

214.1(c)(4). 

53See USCIS, Form I–129 Instructions, 

‘‘Instructions for Petition for Nonimmigrant 

Worker,’’ at 6, https://www.uscis.gov/sites/default/ 

files/document/forms/i-129instr.pdf (last visited 

Aug. 23, 2023). 

54See id. 

4. Deference 

DHS seeks to codify and clarify its 

existing deference policy at proposed 8 

CFR 214.1(c)(5). Deference helps 

promote consistency and efficiency for 

both USCIS and its stakeholders. The 

deference policy instructs officers to 

consider prior determinations involving 

the same parties and facts, when there 

is no material error with the prior 

determination, no material change in 

circumstances or in eligibility, and no 

new material information adversely 

impacting the petitioner’s, applicant’s, 

or beneficiary’s eligibility. Through this 

proposed regulation, DHS seeks to 

clarify when petitioners may expect 

adjudicators to exercise deference in 

reviewing their petitions, so petitioners 

will be more likely to submit necessary, 

relevant supporting evidence. This 

creates predictability for petitioners and 

beneficiaries and leads to fairer and 

more reliable outcomes. Codifying and 

clarifying when USCIS gives deference 

would also better ensure consistent 

adjudications. 

In 2004, USCIS issued a 

memorandum discussing the 

significance of prior USCIS 

adjudications.47 The memorandum 

acknowledged that USCIS is not bound 

to approve subsequent petitions or 

applications where eligibility has not 

been demonstrated merely because of a 

prior approval, which may have been 

erroneous. Nevertheless, where there 

has been no material change in the 

underlying facts, the memorandum 

specified that adjudicators should defer 

to a prior determination involving the 

same parties and underlying facts unless 

there was a material error, a substantial 

change in circumstances, or new 

material information that adversely 

impacts eligibility. On October 23, 2017, 

USCIS rescinded that guidance, 

expressing concern that the 2004 

memorandum shifted the burden from a 

petitioner to USCIS.48 Rather than 

attempt to address any perceived 

concerns, the 2017 memorandum 

rescinded the 2004 policy entirely. On 

April 27, 2021, USCIS incorporated its 

deference policy into the USCIS Policy 

Manual, acknowledging that 

adjudicators are not required to approve 

subsequent petitions or applications 

where eligibility has not been 

demonstrated strictly because of a prior 

approval (which may have been 

erroneous), but stressing that they 

should defer to prior determinations 

involving the same parties and 

underlying facts.49 As stated in the 

USCIS Policy Manual, deviation from a 

previous approval carries important 

consequences and implicates 

predictability and consistency 

concerns.50

Consistent with current guidance in 

the USCIS Policy Manual, proposed 8 

CFR 214.1(c)(5) would provide that 

when adjudicating a request filed on 

Form I–129 involving the same parties 

and the same underlying facts, USCIS 

gives deference to its prior 

determination of the petitioner’s, 

applicant’s, or beneficiary’s eligibility. 

However, USCIS need not give 

deference to a prior approval if: there 

was a material error involved with a 

prior approval; there has been a material 

change in circumstances or eligibility 

requirements; or there is new, material 

information that adversely impacts the 

petitioner’s, applicant’s, or beneficiary’s 

eligibility. 

Proposed 8 CFR 214.1(c)(5) would 

apply to all nonimmigrants using Form 

I–129, Petition for a Nonimmigrant 

Worker, and would include a request on 

Form I–129 involving the same parties 

and same material facts. Currently, the 

USCIS Policy Manual frames its 

deference policy as applying to requests 

for an ‘‘extension of petition 

validity.’’ 51 The phrase ‘‘extension of 

petition validity’’ may be misread as 

limiting USCIS’s deference policy to 

petition extensions and excluding other 

types of requests that could involve the 

same parties and same material facts. 

Thus, DHS proposes to more broadly 

frame proposed 8 CFR 214.1(c)(5) as 

applying to ‘‘a request filed on Form I– 

129’’ and would not use the term 

‘‘extension of petition validity’’ as found 

in the current USCIS Policy Manual. 

5. Evidence of Maintenance of Status 

DHS seeks to clarify current 

requirements and codify current 

practices concerning evidence of 

maintenance of status at proposed 8 

CFR 214.1(c)(1) through (7). 

Maintenance of status in this context 

generally refers to the applicant or 

beneficiary abiding by the terms and 

conditions of admission or extension of 

stay, as applicable (for example, if 

admitted as an H–1B nonimmigrant, the 

individual worked according to the 

terms and conditions of the H–1B 

petition approval on which their status 

was granted and did not engage in 

activities that would constitute a 

violation of status, such as by working 

without authorization). Primarily, DHS 

seeks to clarify that evidence of 

maintenance of status is required for 

petitions where there is a request to 

extend or amend the beneficiary’s stay. 

These changes would impact the 

population of nonimmigrants named in 

8 CFR 214.1(c)(1): E–1, E–2, E–3, H–1B, 

H–1B1, H–2A, H–2B, H–3, L–1, O–1, O– 

2, P–1, P–2, P–3, Q–1, R–1, and TN 

nonimmigrants. 

First, DHS would add a new provision 

at proposed 8 CFR 214.1(c)(6), which 

would provide, in part, that an 

applicant or petitioner seeking an 

extension of stay must submit 

supporting evidence to establish that the 

applicant or beneficiary maintained the 

previously accorded nonimmigrant 

status before the extension request was 

filed.52 Proposed 8 CFR 214.1(c)(6) 

would further provide that evidence of 

such maintenance of status may 

include, but is not limited to: copies of 

paystubs, W–2 forms, quarterly wage 

reports, tax returns, contracts, and work 

orders. This is consistent with the 

nonimmigrant petition form 

instructions, which state that for all 

classifications, if a beneficiary is seeking 

a change of status (COS) or extension of 

stay, evidence of maintenance of status 

must be included with the new 

petition.53 The form instructions further 

state that if the beneficiary is employed 

in the United States, the petitioner may 

submit copies of the beneficiary’s last 

two pay stubs, Form W–2, and other 

relevant evidence, as well as a copy of 

the beneficiary’s Form I–94, passport, 

travel document, or Form I–797.54 By 

proposing to codify these instructions, 

DHS hopes to clarify that petitioners 

should demonstrate such eligibility by 

submitting supporting documentation 

upfront with the extension of stay 

request, rather than waiting for USCIS to 

issue a request for additional 


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55See USCIS, Form I–129 Instructions, 

‘‘Instructions for Petition for Nonimmigrant 

Worker,’’ at 6, https://www.uscis.gov/sites/default/ 

files/document/forms/i-129instr.pdf (last visited 

Aug. 23, 2023). 

information such as a request for 

evidence (RFE) or notice of intent to 

deny (NOID). Under proposed 8 CFR 

214.1(c)(6) DHS further proposes to 

include additional examples of evidence 

to demonstrate maintenance of status, 

which include, but are not limited to: 

quarterly wage reports, tax returns, 

contracts, and work orders. By clearly 

stating what types of supporting 

documentation will help USCIS in 

adjudicating extension petitions, DHS 

hopes to further reduce the need for 

RFEs and NOIDs, which can be 

burdensome to both USCIS and 

petitioners. 

Requiring petitioners (or applicants, 

in the case of E nonimmigrants) to 

submit supporting evidence to establish 

that the beneficiary (or applicant) 

maintained the previously accorded 

nonimmigrant status before the 

extension of stay request was filed 

would not conflict with USCIS’s current 

and proposed deference policy. 

Although USCIS defers to prior USCIS 

determinations of eligibility in 

extension requests, USCIS would not be 

able to defer to a prior determination of 

maintenance of status during the 

preceding stay because it would not 

have made such a determination until 

adjudicating the extension of stay 

request. Even if there was a prior 

determination, USCIS need not give 

deference when there was a material 

error involved with a prior approval; a 

material change in circumstances or 

eligibility requirements; or new, 

material information that adversely 

impacts the petitioner’s, applicant’s, or 

beneficiary’s eligibility. Without 

supporting evidence to demonstrate 

maintenance of status, it is unclear how 

USCIS would determine if there was a 

material error, material change, or other 

new material information. For example, 

evidence pertaining to the beneficiary’s 

continued employment (e.g., paystubs) 

may help USCIS to determine whether 

the beneficiary was being employed 

consistent with the prior petition 

approval or whether there might have 

been material changes in the 

beneficiary’s employment (e.g., a 

material change in the place of 

employment). 

Thus, proposed 8 CFR 214.1(c)(6) 

would make clear that it is the filers’ 

burden to demonstrate that status was 

maintained before the extension of stay 

request was filed. This would be 

consistent with current 8 CFR 

214.1(c)(4), which states that, ‘‘An 

extension of stay may not be approved 

for an applicant who failed to maintain 

the previously accorded status . . ., ’’ as 

well as proposed 8 CFR 214.1(c)(4)(i), 

which would state that, ‘‘An extension 

or amendment of stay may not be 

approved for an applicant or beneficiary 

who failed to maintain the previously 

accorded status . . .’’ 

In line with proposed 8 CFR 

214.1(c)(6), DHS is proposing to amend 

8 CFR 214.2(h)(14) by removing the 

sentence ‘‘Supporting evidence is not 

required unless requested by the 

director.’’ This sentence causes 

confusion because it implies that 

supporting evidence is not required, 

contrary to current 8 CFR 214.1(c)(1) (a 

request for an extension of stay must be 

filed ‘‘on the form designated by USCIS, 

. . . with the initial evidence specified 

in § 214.2, and in accordance with the 

form instructions’’) and the form 

instructions (‘‘[f]or all classifications, if 

a beneficiary is seeking a [COS] or 

extension of stay, evidence of 

maintenance of status must be included 

with the new petition’’).55 Removing 

this sentence from proposed 8 CFR 

214.2(h)(14) should further reduce the 

need for RFEs or NOIDs. 

For the same reasons, DHS is also 

proposing to remove the same or similar 

sentence found in the regulations for the 

L, O, and P nonimmigrant 

classifications. Specifically, DHS 

proposes to amend 8 CFR 214.2(l)(14)(i) 

by removing the sentence ‘‘Except in 

those petitions involving new offices, 

supporting documentation is not 

required, unless requested by the 

director.’’ DHS proposes to amend 8 

CFR 214.2(o)(11) and (p)(13) by 

removing the sentence ‘‘Supporting 

documents are not required unless 

requested by the Director.’’ DHS is 

proposing technical changes to add the 

word ‘‘generally’’ to 8 CFR 

214.2(l)(14)(i), (o)(11), and (p)(13), to 

account for untimely filed extensions 

that are excused consistent with 8 CFR 

214.1(c)(4). As stated above, removing 

this sentence should reduce the need for 

RFEs or NOIDs. Further, it would not 

add an additional burden on the 

petitioner or applicant. 

In addition, DHS proposes to codify 

its longstanding practice of requiring 

evidence of maintenance of status for 

petitions requesting to amend a 

beneficiary’s stay in the United States. 

The proposed rule would add language 

to clarify that the petitioner must submit 

initial evidence that the beneficiary 

maintained the previously accorded 

status before the amendment of stay 

petition was filed. Failure to establish 

maintenance of status would result in a 

denial of the request to amend the 

beneficiary’s stay in the United States, 

unless USCIS determines that the failure 

to timely file the amendment of stay was 

due to extraordinary circumstances. See 

proposed 8 CFR 214.1(c)(1), (4), (6), and 

(7). DHS would also update the Form I– 

129, Petition for a Nonimmigrant 

Worker, as well as the form filing 

instructions to coincide with and 

support these changes, as well as 

provide clarity about when an amended 

petition is appropriate, including the 

requirement of establishing 

maintenance of status for amendment of 

stay requests. 

Current 8 CFR 214.1(c)(1) generally 

requires evidence of maintenance of 

status with an extension of stay request, 

and 8 CFR 214.1(c)(4) generally states 

that an extension of stay may not be 

approved where a beneficiary failed to 

maintain the previously accorded status. 

DHS proposes to add specific references 

to requests to ‘‘amend the terms and 

conditions of the nonimmigrant’s stay 

without a request for additional time’’ or 

for an ‘‘amendment of stay’’ to proposed 

8 CFR 214.1(c)(1), (4), (6), and (7), so 

that these regulations clearly convey 

that evidence of maintenance of status 

is also required for petitions requesting 

to amend a beneficiary’s stay in the 

United States, even when the petition is 

not requesting additional time beyond 

the period previously granted. For 

example, a petitioner may request to 

amend the stay of the beneficiary when 

filing an amended petition but not seek 

additional time for the beneficiary’s stay 

because the beneficiary may have an 

unexpired I–94 that has been granted 

until the end of the 6-year period of 

admission and is not yet eligible for an 

exemption from the 6-year period of 

admission limitation. In that example, 

the petitioner may seek authorization 

for the beneficiary to remain in the 

United States, but under different terms 

and conditions than previously granted, 

without requesting additional time. A 

petitioner filing an amended petition 

with a request to amend the terms and 

conditions of the beneficiary’s stay, but 

without a request for additional time, 

would not specifically request an 

‘‘extension of stay’’ on the Form I–129 

petition. Nevertheless, DHS considers a 

petition requesting to amend the terms 

and conditions of the beneficiary’s stay 

to be substantively equivalent to an 

extension of stay request for purposes of 

establishing maintenance of status and 

will exercise discretion when granting 

such requests. In other words, DHS 

considers an amendment of stay request 

as a request to continue to allow the 

beneficiary to remain in the United 

States based upon the amended 


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56Proposed 8 CFR 214.1(c)(4)(ii) would continue 

to state, with minor revisions, that if USCIS excuses 

the late filing of an extension of stay request, it will 

do so without requiring the filing of a separate 

application or petition and will grant the extension 

of stay from the date the previously authorized stay 

expired or the amendment of stay from the date the 

petition was filed. 

57See USCIS, Form I–129, ‘‘Petition for a 

Nonimmigrant Worker,’’ https://www.uscis.gov/ 

sites/default/files/document/forms/i-129.pdf (last 

visited Mar. 14, 2023). 

58USCIS issued policy memorandum PM–602– 

0114 following the decision of the U.S. District 

Court for the District of Columbia in ITServe 

Alliance, Inc. v. Cissna, 443 F. Supp. 3d 14, 42 

(D.D.C. 2020) (‘‘the itinerary requirement in the INS 

1991 Regulation [codified at 8 CFR 

214.2(h)(2)(i)(B)] . . has been superseded by statute 

and may not be applied to H–1B visa applicants’’). 

See also Serenity Info Tech, Inc. v. Cuccinelli, 461 

F. Supp. 3d 1271, 1285 (N.D. Ga. 2020) (citing 

ITServe). 

conditions for a period of stay that has 

already been granted. Therefore, DHS 

believes that it is reasonable to require 

evidence that maintenance of status has 

been satisfied, before USCIS may 

favorably exercise its discretion to grant 

an amendment of stay request. Further, 

including amendments of stay under 8 

CFR 214.1(c) would close a potential 

loophole of using an amended petition 

for a beneficiary who has not 

maintained status, yet wishes to remain 

in the United States, without having to 

depart and be readmitted in that status. 

Currently, most petitioners filing to 

amend a beneficiary’s stay already 

submit evidence of maintenance of 

status; however, if an amended petition 

does not contain evidence of 

maintenance of status, USCIS typically 

issues a request for such evidence. By 

proposing to codify current practice in 

8 CFR 214.1(c), DHS hopes to clarify 

that petitioners should demonstrate 

eligibility by submitting evidence of 

maintenance of status with the 

amendment of stay request (just like 

with an extension of stay request), 

rather than waiting for USCIS to request 

this information. By clearly stating what 

types of supporting documentation will 

help USCIS in adjudicating requests to 

amend a beneficiary’s stay, DHS hopes 

to further reduce the need for RFEs and 

NOIDs, which can be burdensome for 

petitioners and USCIS, and generally 

extends the time needed to complete the 

adjudication of the petition. 

Specifically, DHS proposes to revise 8 

CFR 214.1(c)(4), to add a reference to an 

‘‘amendment’’ of stay. Aside from 

clarifying that evidence of maintenance 

of status would be required in an 

amendment of stay request, this change 

would also clarify that USCIS can 

excuse the late filing of an amendment 

of stay request under the circumstances 

described at proposed 8 CFR 

214.1(c)(4)(i)(A) through (D). ‘‘Late 

filing’’ in this context would include 

certain extension of stay requests filed 

after the expiration date on the Form I– 

94. A ‘‘late filing’’ would also 

encompass, for example, a request for an 

amendment of stay that was filed after 

the beneficiary temporarily stopped 

working due to extraordinary 

circumstances beyond their control. 

DHS would clarify in proposed 8 CFR 

214.1(c)(4)(ii) that, if USCIS excuses the 

late filing of an amendment of stay 

request, it would do so without 

requiring the filing of a separate 

application or petition and would grant 

the amendment of stay, if otherwise 

eligible, from the date the petition was 

filed.56

DHS proposes nonsubstantive edits to 

improve readability to 8 CFR 

214.1(c)(4). DHS also proposes 

nonsubstantive edits in proposed 8 CFR 

214.1(c)(1) and (4) to add references to 

a ‘‘beneficiary,’’ ‘‘petition,’’ or ‘‘Form I– 

129,’’ to account for the extension or 

amendment of stay being requested on 

the Form I–129 petition, and to replace 

‘‘alien’’ with ‘‘beneficiary’’ and 

‘‘Service’’ with ‘‘USCIS.’’ With respect 

to proposed 8 CFR 214.1(c)(7), this 

provision would contain the same 

language as current 8 CFR 214.1(c)(5), 

except that DHS would add references 

to an ‘‘amendment’’ of stay and make 

other nonsubstantive edits similar to the 

ones described above. 

6. Eliminating the Itinerary Requirement 

for H Programs 

DHS is proposing to eliminate the H 

programs’ itinerary requirement. See 

proposed 8 CFR 214.2(h)(2)(i)(B) and 

(F). Current 8 CFR 214.2(h)(2)(i)(B) 

states that ‘‘A petition that requires 

services to be performed or training to 

be received in more than one location 

must include an itinerary with the dates 

and locations of the services or training 

and must be filed with USCIS as 

provided in the form instructions.’’ In 

addition, current 8 CFR 214.2(h)(2)(i)(F), 

for agents as petitioners, contains 

itinerary requirement language. 

The information provided in an 

itinerary is largely duplicative of 

information already provided in the 

LCA for H–1B petitions and the 

temporary labor certification (TLC) for 

H–2 petitions. The LCA and TLC require 

the petitioner to the list the name and 

address where work will be performed, 

as well as the name and address of any 

secondary entity where work will be 

performed. It is also largely duplicative 

of information already provided on the 

Form I–129, which requires the 

petitioner to provide the address where 

the beneficiary will work if different 

from the petitioner’s address listed on 

the form.57 Therefore, eliminating the 

itinerary requirement would reduce 

duplication that increases petitioner 

burden and promote more efficient 

adjudications, without compromising 

program integrity. Furthermore, USCIS 

no longer applies the itinerary 

requirement to H–1B petitions governed 

by 8 CFR 214.2(h)(2)(i)(B), as 

memorialized in USCIS Policy 

Memorandum PM–602–0114, 

‘‘Rescission of Policy Memoranda’’ 

(June 17, 2020) (rescinding USCIS 

Policy Memorandum PM–602–0157, 

‘‘Contracts and Itineraries Requirements 

for H–1B Petitions Involving ThirdParty Worksites’’ (Feb. 22, 2018)).58

To eliminate the unnecessary 

duplication of work, DHS also proposes 

to eliminate the itinerary requirement 

for agents acting as petitioners at current 

8 CFR 214.2(h)(2)(i)(F). In proposing to 

eliminate the itinerary requirement for 

agents at paragraph (h)(2)(i)(F), DHS 

also proposes to incorporate technical 

changes to this provision by moving 

language currently found in paragraph 

(h)(2)(i)(F)(2) to paragraph (h)(2)(i)(F)(1); 

removing paragraph (h)(2)(i)(F)(2); and 

redesignating current paragraph 

(h)(2)(i)(F)(3) as proposed paragraph 

(h)(2)(i)(F)(2). Proposed 8 CFR 

214.2(h)(2)(i)(F)(1) would incorporate 

the following language currently found 

in paragraph (h)(2)(i)(F)(2): ‘‘The burden 

is on the agent to explain the terms and 

conditions of the employment and to 

provide any required documentation. In 

questionable cases, a contract between 

the employers and the beneficiary or 

beneficiaries may be required.’’ This 

proposed restructuring at 8 CFR 

214.2(h)(2)(i)(F) is intended to simplify 

and consolidate the guidance for agents 

as petitioners following the removal of 

the itinerary requirement language. 

7. Validity Expires Before Adjudication 

DHS proposes to allow H–1B petitions 

to be approved or have their requested 

validity period dates extended if USCIS 

adjudicates and deems the petition 

approvable after the initially requested 

validity period end-date, or the period 

for which eligibility has been 

established, has passed. This typically 

would happen if USCIS deemed the 

petition approvable upon a favorable 

motion to reopen, motion to reconsider, 

or appeal. Specifically, under proposed 

8 CFR 214.2(h)(9)(ii)(D)(1), if USCIS 

adjudicates an H–1B petition and deems 

it otherwise approvable after the 

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date, or the last day for which eligibility 

has been established, USCIS may issue 

an RFE asking whether the petitioner 

wants to update the dates of intended 

employment. 

If in response to the RFE the 

petitioner confirms that it wants to 

update the dates of intended 

employment and submits a different 

LCA that corresponds to the new 

requested validity dates, even if that 

LCA was certified after the date the H– 

1B petition was filed, and assuming all 

other eligibility criteria are met, USCIS 

would approve the H–1B petition for the 

new requested period or the period for 

which eligibility has been established, 

as appropriate, rather than require the 

petitioner to file a new or amended 

petition. The petitioner’s request for 

new dates of employment and 

submission of an LCA with a new 

validity period that properly 

corresponds to the revised requested 

validity period on the petition and an 

updated prevailing or proffered wage, if 

applicable, would not be considered a 

material change, except that the 

petitioner may not reduce the proffered 

wage from that originally indicated in 

their petition. See proposed 8 CFR 

214.2(h)(9)(ii)(D)(1). However, the total 

petition validity period would still not 

be able to exceed 3 years. 

Currently, if USCIS adjudicates and 

deems these types of petitions 

approvable after the initially requested 

validity period, or the last day for which 

eligibility has been established, has 

elapsed, the petition must be denied. 

The petitioner is also not able to change 

the requested validity period using the 

same petition. Instead, the petitioner 

must file an amended or new petition 

requesting a new validity period if they 

seek to employ or continue to employ 

the beneficiary. See 8 CFR 

214.2(h)(2)(i)(E) and (h)(11)(i)(A). The 

requirement to file an amended or new 

petition in this circumstance results in 

additional filing costs and burden for 

the petitioner. It also results in 

unnecessary expenditures of USCIS 

resources to intake and adjudicate 

another petition, even though the only 

change generally is a new requested 

validity period due to the passage of 

time. This is not an efficient use of 

USCIS or the petitioner’s resources. In 

certain circumstances this requirement 

may also result in the H–1B beneficiary 

losing their cap number, which 

generally would be an unequitable 

result for a petition that was otherwise 

approvable. 

Aside from changing the requested 

validity period, the petitioner would 

also be able to increase the proffered 

wage to conform with a new prevailing 

wage if the prevailing wage has 

increased due to the passage of time. 

The petitioner would also be able to 

increase the proffered wage for other 

reasons, such as to account for other 

market wage adjustments. An increase 

to the proffered wage would not be 

considered a material change, so long as 

there are no other material changes to 

the position. However, a petitioner 

would not be allowed to reduce the 

proffered wage, even if the prevailing 

wage decreased due to the passage of 

time. If the petitioner intends to reduce 

the proffered wage or make any other 

material change to the proposed 

employment, it would have to file an 

amended or new petition in accordance 

with existing provisions at 8 CFR 

214.2(h)(2)(i)(E) and (h)(11)(i)(A). 

Under proposed 8 CFR 

214.2(h)(9)(ii)(D), USCIS would not be 

required to issue an RFE, as it could 

instead proceed to approve the petition 

for the originally requested period or 

until the last day for which eligibility 

has been established, as appropriate. For 

example, USCIS would not be required 

to issue an RFE when the beneficiary 

has already been granted H–1B status 

through another employer, changed 

nonimmigrant status, adjusted status, or 

has reached their 6-year limitation on 

stay, such that an RFE asking the 

petitioner if they want to update the 

requested dates of H–1B employment 

would serve little or no purpose. 

Consistent with these examples, DHS 

would consider potential factors that 

could inform whether USCIS issues an 

RFE as including, but not limited to, 

additional petitions filed or approved 

on the beneficiary’s behalf, or the 

beneficiary’s eligibility for additional 

time in H–1B status. See proposed 8 

CFR 214.2(h)(9)(ii)(D)(1) and (2). 

Proposed 8 CFR 214.2(h)(9)(ii)(D)(2) 

provides that if no RFE is issued 

concerning the requested dates of 

employment, or if the petitioner does 

not respond, or the response to the RFE 

does not support new dates of 

employment, the petition would be 

approved, if otherwise approvable, for 

the originally requested period or until 

the last day for which eligibility has 

been established, as appropriate. The 

last day for which eligibility has been 

established could, for example, be the 

date the beneficiary reached their sixyear maximum limitation on stay, or the 

end date of the supporting LCA, or one 

year from approval in case of temporary 

licensure. If the petition is approved for 

the originally requested period or the 

last day for which eligibility has been 

established, the petition would not be 

forwarded to the U.S. Department of 

State (DOS) nor would any 

accompanying request for a COS, 

extension of stay, or amendment of stay, 

be granted because the validity period 

would have already expired and would 

therefore not support issuance of a visa 

or a grant of status. 

B. Benefits and Flexibilities 

1. H–1B Cap Exemptions 

DHS proposes to revise the 

requirements to qualify for H–1B cap 

exemption under 8 CFR 

214.2(h)(8)(iii)(F)(4) when a beneficiary 

is not directly employed by a qualifying 

institution, organization, or entity. DHS 

also proposes to revise the definition of 

‘‘nonprofit research organization’’ and 

‘‘governmental research organization’’ 

under 8 CFR 214.2(h)(19)(iii)(C). These 

proposed changes are intended to 

clarify, simplify, and modernize 

eligibility for cap-exempt H–1B 

employment, so that they are less 

restrictive and better reflect modern 

employment relationships. The 

proposed changes are also intended to 

provide additional flexibility to 

petitioners to better implement 

Congress’s intent to exempt from the 

annual H–1B cap certain H–1B 

beneficiaries who are employed at a 

qualifying institution, organization, or 

entity. 

Congress set the current annual 

regular cap for the H–1B visa category 

at 65,000. See INA section 214(g)(1)(A), 

8 U.S.C. 1184(g)(1)(A). Not all H–1B 

nonimmigrant visas (or grants of H–1B 

status) are subject to this annual cap. 

INA section 214(g)(5) allows certain 

employers to employ H–1B 

nonimmigrant workers without being 

subject to the annual numerical cap. See 

INA section 214(g)(5), 8 U.S.C. 

1184(g)(5). For example, INA section 

214(g)(5)(A) and (B) exempts those 

workers who are employed at an 

institution of higher education or a 

related or affiliated nonprofit entity, a 

nonprofit research organization or a 

governmental research organization. See 

INA section 214(g)(5)(A)–(B), 8 U.S.C. 

1184(g)(5)(A)–(B). 

Currently, DHS regulations state that 

an H–1B nonimmigrant worker is 

exempt from the cap if employed by: (1) 

an institution of higher education; (2) a 

nonprofit entity related to or affiliated 

with such an institution; (3) a nonprofit 

research organization; or (4) a 

governmental research organization. See 

8 CFR 214.2(h)(8)(iii)(F)(1) through (3). 

DHS regulations also state that an H–1B 

nonimmigrant worker may be exempt 

from the cap when they are not 

‘‘directly employed’’ by a qualifying 

institution, organization, or entity, if 

they are employed at a qualifying 


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59 8 CFR 214.2(h)(19)(iii) and (iv) pertains to 

organizations that are exempt from the ACWIA fee 

for H–1B petitions. 

60See USCIS, Adjudicator’s Field Manual (AFM), 

Chapter 31.3(g)(13), ‘‘Cap Exemptions Pursuant to 

214(g)(5) of the Act,’’ https://www.uscis.gov/sites/ 

default/files/document/policy-manual-afm/afm31- 

external.pdf, at 36 (providing an example of a 

qualifying H–1B cap-exempt petition where the 

beneficiary ‘‘will spend more than half of her time’’ 

working at the qualifying entity). While USCIS 

retired the AFM in May 2020, this example 

nevertheless illustrates the agency’s historical 

interpretation since at least June 2006, when 

chapter 31.3(g)(13) was added. See also USCIS, 

Interoffice Memorandum HQPRD 70/23.12, 

‘‘Guidance Regarding Eligibility for Exemption from 

the H–1B Cap Based on § 103 of the American 

Competitiveness in the Twenty-First Century Act of 

2000 (AC21) (Pub. L. 106–313)’’ (Jun. 6, 2006), 

https://www.uscis.gov/sites/default/files/document/ 

memos/ac21c060606.pdf. 

61Although DHS would replace the word 

‘‘essential’’ with ‘‘fundamental’’ in proposed 8 CFR 

214.2(h)(8)(iii)(F)(4), these two words are 

synonymous for purposes of cap exemptions. DHS 

proposes to use ‘‘fundamental’’ in proposed 8 CFR 

214.2(h)(8)(iii)(F)(4) in order to be consistent with 

current and proposed 8 CFR 214.2(h)(19)(iii). 

institution, organization, or entity so 

long as: (1) the majority of the worker’s 

work time will be spent performing job 

duties at a qualifying institution, 

organization, or entity; and (2) the 

worker’s job duties will directly and 

predominately further the essential 

purpose, mission, objectives or 

functions of the qualifying institution, 

organization or entity. See 8 CFR 

214.2(h)(8)(iii)(F)(4). When relying on 

this exemption, the H–1B petitioner 

must also establish that there is a nexus 

between the work to be performed and 

the essential purpose, mission, 

objectives, or functions of the qualifying 

institution, organization, or entity. Id. 

The H–1B cap exemption regulations 

define ‘‘nonprofit entity,’’ ‘‘nonprofit 

research organization,’’ and 

‘‘governmental research organization’’ at 

8 CFR 214.2(h)(8)(iii)(F)(3). For the 

definition of ‘‘nonprofit entity,’’ the 

regulation adopts the definition at 8 

CFR 214.2(h)(19)(iv).59 For the 

definition of ‘‘nonprofit research 

organization’’ and ‘‘governmental 

research organization,’’ the regulation 

adopts the definition at 8 CFR 

214.2(h)(19)(iii)(C). The regulation at 8 

CFR 214.2(h)(19)(iii)(C) states that a 

nonprofit research organization is 

‘‘primarily engaged in basic research 

and/or applied research,’’ while a 

governmental research organization is a 

Federal, State, or local entity ‘‘whose 

primary mission is the performance or 

promotion of basic research and/or 

applied research.’’ Id. 

Specifically, DHS proposes to change 

the phrase ‘‘the majority of’’ at 8 CFR 

214.2(h)(8)(iii)(F)(4) to ‘‘at least half’’ to 

clarify that H–1B beneficiaries who are 

not directly employed by a qualifying 

institution, organization, or entity 

identified in section 214(g)(5)(A) or (B) 

of the Act, who equally split their work 

time between a cap-exempt entity and a 

non-cap-exempt entity, may be eligible 

for cap exemption. See proposed 8 CFR 

214.2(h)(8)(iii)(F)(4). The purpose and 

intended effect of the proposed change 

is to update the standard to qualify for 

this cap exemption, as USCIS has 

historically interpreted ‘‘the majority 

of’’ as meaning more than half.60 For 

example, under proposed 8 CFR 

214.2(h)(8)(iii)(F)(4), a beneficiary who 

works at a for-profit hospital and 

research center that would not 

otherwise be a qualifying institution 

would qualify for this cap exemption if 

the beneficiary will spend exactly 50 

percent of their time performing job 

duties at a qualifying research 

organization (and those job duties 

would further an activity that supports 

or advances one of the fundamental 

purposes, missions, objectives, or 

functions of the qualifying research 

organization). Under the current 

regulations, the same beneficiary would 

not qualify because 50 percent would 

not meet the ‘‘majority of’’ standard. 

The application of 8 CFR 

214.2(h)(8)(iii)(F)(4) to a beneficiary 

who is not directly employed by a 

qualifying institution, organization, or 

entity identified in section 214(g)(5)(A) 

or (B) of the Act would remain 

unchanged. 

DHS also proposes to revise 8 CFR 

214.2(h)(8)(iii)(F)(4) to remove the 

requirement that a beneficiary’s duties 

‘‘directly and predominately further the 

essential purpose, mission, objectives or 

functions’’ of the qualifying institution, 

organization, or entity and replace it 

with the requirement that the 

beneficiary’s duties ‘‘directly further an 

activity that supports or advances one of 

the fundamental purposes, missions, 

objectives, or functions’’ of the 

qualifying institution, organization, or 

entity. See proposed 8 CFR 

214.2(h)(8)(iii)(F)(4).61 This proposed 

change is intended to update the 

availability of cap exemptions to 

include beneficiaries whose work 

directly contributes to, but does not 

necessarily predominantly further, the 

qualifying organization’s fundamental 

purpose, mission, objectives, or 

functions. Further, this proposed 

change, by revising ‘‘the’’ to ‘‘an’’, 

acknowledges that a qualifying 

organization may have more than one 

fundamental purpose, mission, 

objective, or function, and this fact 

should not preclude an H–1B 

beneficiary from being exempt from the 

H–1B cap. 

Proposed 8 CFR 214.2(h)(8)(iii)(F)(4) 

would also eliminate the sentence 

stating that the H–1B petitioner has the 

burden to establish that there is a nexus 

between the beneficiary’s duties and the 

essential purpose, mission, objectives or 

functions of the qualifying institution, 

organization, or entity. Since the 

petitioner is already required to 

establish that the beneficiary’s duties 

further an activity that supports one of 

the fundamental purposes, missions, 

objectives, or functions of the qualifying 

entity, it is inherently required to show 

a nexus between the duties and the 

entity’s purpose, mission, objections, or 

functions, and therefore, the ‘‘nexus’’ 

requirement is redundant. These 

proposed changes to 8 CFR 

214.2(h)(8)(iii)(F)(4) would provide 

more clarity and flexibility for H–1B 

beneficiaries who will not be directly 

employed by a qualifying institution, 

organization, or entity. 

DHS also proposes to clarify that the 

requirement that the beneficiary spend 

at least half of their work time 

performing job duties ‘‘at’’ a qualifying 

institution should not be taken to mean 

the duties need to be physically 

performed onsite at the qualifying 

institution. DHS is aware that many 

positions can be performed remotely. 

When considering whether such a 

position is cap-exempt, the proper focus 

is on the job duties, rather than where 

the duties are performed physically. 

DHS also proposes to revise 8 CFR 

214.2(h)(19)(iii)(C), which states that a 

nonprofit research organization is an 

entity that is ‘‘primarily engaged in 

basic research and/or applied research,’’ 

and a governmental research 

organization is a Federal, State, or local 

entity ‘‘whose primary mission is the 

performance or promotion of basic 

research and/or applied research.’’ DHS 

proposes to replace ‘‘primarily engaged’’ 

and ‘‘primary mission’’ with ‘‘a 

fundamental activity of’’ to permit a 

nonprofit entity or governmental 

research organization that conducts 

research as a fundamental activity, but 

is not primarily engaged in research, or 

where research is not the primary 

mission, to meet the definition of a 

nonprofit research entity or 

governmental research organization. See 

proposed 8 CFR 214.2(h)(19)(iii)(C). 

Reorienting the cap exemptions for 

nonprofit research organizations and 

governmental research organizations to 

the ‘‘fundamental activity’’ construct 

would align these standards with the 

current ‘‘fundamental activity’’ standard 

found for formal written affiliation 

agreements under 8 CFR 


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62As DHS explained in the final rule, the 

‘‘primarily’’ and ‘‘primary’’ requirements ‘‘have 

been in place since 1998 with regard to fee 

exemptions and have been in effect for more than 

a decade for purposes of the cap exemptions.’’ See 

‘‘Retention of EB–1, EB–2, and EB–3 Immigrant 

Workers and Program Improvements Affecting 

High-Skilled Nonimmigrant Workers,’’ 81 FR 

82398, 82446 (Nov. 18, 2016). 

63 Id. 

64See, e.g., Open Society Inst. v. USCIS, 2021 WL 

4243403, at *1 (D.D.C. 2021) (‘‘Open Society 

maintains that on over a dozen prior occasions 

USCIS found that Open Society satisfied this 

standard but that in 2020 the agency reversed 

course without sufficient explanation or sound 

reason.’’). 

65See ‘‘Retention of EB–1, EB–2, and EB–3 

Immigrant Workers and Program Improvements 

Affecting High-Skilled Nonimmigrant Workers,’’ 80 

FR 81900 (Dec. 31, 2015) (proposed rule). 

66See ‘‘Retention of EB–1, EB–2, and EB–3 

Immigrant Workers and Program Improvements 

Affecting High-Skilled Nonimmigrant Workers,’’ 81 

FR 82398, 82444 (Nov. 18, 2016). 

67See Open Society Inst. v. USCIS, 2021 WL 

4243403, at *5 (D.D.C. 2021) (‘‘the ordinary 

meaning of ‘primarily’ as it is used in 8 CFR 

214.2(h)(19)(iii)(C) is ‘principally and as 

distinguished from incidentally or secondarily.’’’). 

68Multiple comments leading to the 2016 final 

rule also expressed concern that the ‘‘primary 

purpose’’ requirement was too restrictive, although 

in the context of 8 CFR 214.2(h)(8)(ii)(F)(2)(iv) and 

(h)(19)(iii)(B)(4). 81 FR at 82403. 

69See Open Society Institute v. USCIS, 2021 WL 

4243403, at *4–5 (D.D.C. 2021) (The court examined 

AAO’s analysis of the term ‘‘primarily engaged’’ 

and the AAO’s conclusion that ‘‘a nonprofit 

organization is ‘‘primarily engaged’’ in research if, 

and only if, it is ‘‘‘directly and principally’ engaged 

in research’’: ‘‘. . . [While] [Open Society] is 

‘focused on research—researching problems in the 

world, researching possible solutions for those 

problems, and researching how to implement those 

solutions,’ the regulation at 8 CFR 

214.2(h)(19)(iii)(C) defines a nonprofit research 

organization as one that is ‘primarily engaged’ in 

research, which we interpret to mean directly and 

principally engaged in research. Based on the 

totality of evidence in the record, and considering 

its research activities in proportion to its other 

activities, we conclude that the record does not 

demonstrate that [Open Society] is directly and 

principally engaged in research. The research 

conducted by [Open Society] is incidental, or, at 

best, secondary to its principal activities: making 

grants to promote social, legal and economic 

reforms.’ ’’) (changes in original). 

214.2(h)(8)(iii)(F)(2)(iv) and 

(h)(19)(iii)(B)(4), and would bring more 

clarity and predictability to decisionmaking, for both adjudicators and the 

regulated community. 

DHS acknowledges that the 

‘‘primarily’’ and ‘‘primary’’ 

requirements at current 8 CFR 

214.2(h)(19)(iii)(C) have been in effect 

for over a decade for purposes of cap 

exemptions, and that DHS declined to 

make the same changes it is currently 

proposing in response to commenters’ 

suggestions when codifying this 

regulation in 2016.62 At that time, DHS 

stated ‘‘that maintaining these 

longstanding interpretations, which 

include the ‘primarily’ and ‘primary’ 

requirements, will serve to protect the 

integrity of the cap and fee exemptions 

as well as clarify for stakeholders and 

adjudicators what must be proven to 

successfully receive such 

exemptions.’’ 63 However, rather than 

providing clarity, the ‘‘primarily’’ and 

‘‘primary’’ requirements have resulted 

in inconsistency and confusion 

surrounding eligibility for such cap 

exemptions.64

In 2015, DHS proposed using the 

phrase ‘‘primary purpose’’ at 8 CFR 

214.2(h)(8)(iii)(F)(2)(iv) and 

(h)(19)(iii)(B)(4) (addressing cap 

exemption and ACWIA fee exemption, 

respectively, for a nonprofit entity that 

is related to or affiliated with an 

institution of higher education based on 

a formal written affiliation agreement).65

In the 2016 final rule, however, DHS 

explained that it was not pursuing the 

proposed phrase ‘‘primary purpose’’ and 

instead chose to replace it with 

‘‘fundamental activity’’ at 8 CFR 

214.2(h)(8)(iii)(F)(2)(iv) and 

(h)(19)(iii)(B)(4) ‘‘to avoid potential 

confusion’’ and to make it ‘‘clearer that 

nonprofit entities may qualify for the 

cap and fee exemptions even if they are 

engaged in more than one fundamental 

activity, any one of which may directly 

contribute to the research or education 

mission of a qualifying college or 

university.’’ 66 Even though DHS 

declined to concurrently change the 

‘‘primarily’’ and ‘‘primary’’ language at 

current 8 CFR 214.2(h)(19)(iii)(C), DHS 

acknowledges that the ‘‘fundamental 

activity’’ text in current 8 CFR 

214.2(h)(8)(iii)(F)(2)(iv) and 

(h)(19)(iii)(B)(4) did enhance clarity in 

the intended manner and believes that 

current 8 CFR 214.2(h)(19)(iii)(C) would 

similarly benefit from this proposed 

change. 

In addition, DHS believes that the 

proposed ‘‘fundamental activity’’ 

standard would still protect the integrity 

of the cap. While changing this 

terminology may somewhat expand who 

is eligible for the cap exemption, it 

would still require that an employer 

demonstrate that research is a 

‘‘fundamental activity,’’ which is a 

meaningful limiting standard. Not every 

activity an organization engages in 

would be considered a ‘‘fundamental 

activity.’’ A fundamental activity would 

still have to be an important and 

substantial activity, although it need not 

be the organization’s principal or 

foremost activity as required under the 

current ‘‘primary’’ construct.67 Further, 

the organization would still need to 

meet all the other requirements to 

qualify as a nonprofit research 

organization or governmental research 

organization, including engaging in 

qualifying research as defined in 

proposed 8 CFR 214.2(h)(19)(iii)(C), and 

documenting its tax exempt status 

pursuant to proposed 8 CFR 

214.2(h)(19)(iv). 

DHS believes that the ‘‘primarily’’ and 

‘‘primary’’ requirements at current 8 

CFR 214.2(h)(19)(iii)(C) are too 

restrictive.68 As explained above, the 

current ‘‘primarily’’ and ‘‘primary’’ 

construct requires a petitioner to 

demonstrate that research is its 

principal activity, i.e., that research is 

the main or primary activity.69 One key 

difference between the current and 

proposed standard is that an employer 

could have more than one ‘‘fundamental 

activity,’’ whereas the ‘‘primary’’ or 

‘‘primarily’’ standard requires that 

research is the employer’s foremost and 

main activity. This proposed change 

acknowledges the reality that nonprofit 

organizations may engage in several 

important activities. The proposed 

change modernizes the definition of 

‘‘nonprofit research organization’’ and 

‘‘governmental research organization’’ to 

include entities that may assist with 

aspects of research throughout the 

research cycle despite not being 

primarily engaged in performing the 

research. For example, a nonprofit 

organization with a mission to eradicate 

malaria that engages in lobbying, public 

awareness, funding medical research, 

and performing its own research on the 

efficacy of various preventative 

measures, may qualify for H–1B cap 

exemption even if it was not primarily 

engaged in research. In this example, 

the organization would still qualify for 

the cap exemption if research were one 

of several ‘‘fundamental activities’’ of 

the organization, as opposed to its 

primary mission. Similarly, a 

governmental research organization that 

engages in semiconductor 

manufacturing research and 

development could qualify for H–1B cap 

exemption if research is a fundamental 

activity of the organization. Under the 

proposed rule, the organization may be 

eligible for cap exemptions if research is 

one of its fundamental activities as 

opposed to its primary activity. 

DHS also proposes to revise 8 CFR 

214.2(h)(19)(iii)(C) to state that a 

‘‘nonprofit research organization or 

governmental research organization may 

perform or promote more than one 

fundamental activity.’’ See proposed 8 

CFR 214.2(h)(19)(iii)(C). This proposed 

change would align with DHS’s position 

that a nonprofit entity may engage in 

more than one fundamental activity 

under current 8 CFR 


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70 Id. at 82445 (‘‘DHS emphasizes that a nonprofit 

entity may meet this definition even if it is engaged 

in more than one fundamental activity, so long as 

at least one of those fundamental activities is to 

directly contribute to the research or education 

mission of a qualifying college or university.’’). 71These proposed changes would also impact 

eligibility for exemption from the ACWIA fees 

applicable to initial cap-subject petitions. The 

definitions of ‘‘nonprofit research organization’’ and 

‘‘governmental research organization’’ at 8 CFR 

214.2(h)(19)(iii)(C), and ‘‘nonprofit entity’’ at 8 CFR 

214.2(h)(19)(iv), would continue to apply to which 

entities are exempt from the H–1B- cap as well as 

which entities are exempt from the additional 

ACWIA fee. 

72See S. Rep. No. 260, 106th Cong., 2nd Sess. 

(Apr. 11, 2000), at 10 (AC21 sought to help the 

American economy by, in part, exempting from the 

H–1B cap ‘‘visas obtained by universities, research 

facilities, and those obtained on behalf of graduate 

degree recipients to help keep top graduates and 

educators in the country.’’ See also ‘‘Retention of 

EB–1, EB–2, and EB–3 Immigrant Workers and 

Program Improvements Affecting High-Skilled 

Nonimmigrant Workers,’’ 81 FR 82398, 82447 (Nov. 

18, 2016) (‘‘DHS believes that its policy extending 

the cap exemption to individuals employed ‘at’ and 

not simply employed ‘by’ a qualifying institution, 

organization or entity is consistent with the 

language of the statute and furthers the goals of 

AC21 to improve economic growth and job creation 

by immediately increasing U.S. access to highskilled workers, and particularly at these 

institutions, organizations, and entities.’’). 

73See 8 CFR 214.2(h)(2)(i)(I). 

74 DHS previously proposed extending the capgap period, but the proposed rule was never 

finalized and was subsequently withdrawn. See 

‘‘Establishing a Fixed Time Period of Admission 

and an Extension of Stay Procedure for 

Nonimmigrant Academic Students, Exchange 

Visitors, and Representatives of Foreign Information 

Media,’’ 85 FR 60526 (Sept. 25, 2020) (withdrawn 

by 86 FR 35410 (July 6, 2021)). 

75See ‘‘Extending Period of Optional Practical 

Training by 17 Months for F–1 Nonimmigrant 

Students With STEM Degrees and Expanding Cap214.2(h)(8)(iii)(F)(2)(iv),70 which DHS 

seeks to codify at proposed 8 CFR 

214.2(h)(8)(iii)(F)(2)(iv) and 

(h)(19)(iii)(B)(4) as well. DHS believes it 

should apply the same standard that an 

entity may engage in more than one 

fundamental activity, regardless of 

whether that entity is requesting cap 

exemption as an ‘‘affiliated or related 

nonprofit entity’’ or a ‘‘nonprofit 

research organization or governmental 

research organization.’’ 

Finally, DHS proposes to add 

language that both basic and applied 

research may also include ‘‘designing, 

analyzing, and directing the research of 

others if on an ongoing basis and 

throughout the research cycle.’’ See 

proposed 8 CFR 214.2(h)(19)(iii)(C). 

Taken together, these proposed 

changes clarify, simplify, and 

modernize eligibility for cap-exempt H– 

1B employment.71 DHS’s proposed 

changes to 8 CFR 214.2(h)(8)(iii)(F)(4) 

and (h)(19)(iii)(C) provide additional 

flexibility to exempt from the H–1B cap 

certain H–1B beneficiaries who are 

employed at a qualifying institution, 

organization, or entity. These changes 

are consistent with the language of the 

statute at INA section 214(g)(5)(A) 

through (B) and would further the INA’s 

goals of improving economic growth 

and job creation by facilitating U.S. 

employers’ access to high-skilled 

workers, particularly at these 

institutions, organizations, and 

entities.72

DHS further proposes to amend the 

definition of ‘‘nonprofit or tax exempt 

organizations’’ by eliminating 8 CFR 

214.2(h)(19)(iv)(B), which currently 

requires that the petitioner provide 

evidence that it ‘‘[h]as been approved as 

a tax exempt organization for research 

or educational purposes by the Internal 

Revenue Service.’’ In its experience, 

USCIS has found that Internal Revenue 

Service (IRS) letters generally do not 

identify the reasons why an entity 

received approval as a tax exempt 

organization, so current 8 CFR 

214.2(h)(19)(iv)(B) imposes an 

evidentiary requirement that is unduly 

difficult to meet. Proposed 8 CFR 

214.2(h)(19)(iv) would more simply 

state that a nonprofit organization or 

entity ‘‘must be determined by the 

Internal Revenue Service as a tax 

exempt organization under the Internal 

Revenue Code of 1986, section 501(c)(3) 

(c)(4), or (c)(6), 26 U.S.C. 501(c)(3), 

(c)(4), or (c)(6).’’ While this change 

would remove the requirement that the 

IRS letter itself state that the petitioner’s 

approval as a tax exempt organization 

was ‘‘for research or educational 

purposes,’’ DHS is not proposing to 

eliminate or otherwise change the 

overarching requirement that a 

qualifying nonprofit or tax exempt 

petitioner be an institution of higher 

education or a related or affiliated 

nonprofit entity, or a nonprofit research 

organization or a governmental research 

organization institution, as required by 

the regulations and INA section 

214(g)(5). The petitioner would still 

need to submit documentation to 

demonstrate that it meets such a 

requirement, except that the submitted 

documentation would not need to be in 

the form of an IRS letter. 

2. Automatic Extension of Authorized 

Employment Under 8 CFR 214.2(f)(5)(vi) 

(Cap–Gap) 

DHS proposes to revise 8 CFR 

214.2(f)(5)(vi) to provide an automatic 

extension of duration of status and postcompletion OPT or 24-month extension 

of post-completion OPT, as applicable, 

until April 1 of the relevant fiscal year 

for which the H–1B petition is 

requested. See proposed 8 CFR 

214.2(f)(5)(vi). Currently, the automatic 

extension is valid only until October 1 

of the fiscal year for which H–1B status 

is being requested. This change would 

result in more flexibility for both 

students and USCIS and would help to 

avoid disruption to U.S. employers that 

are lawfully employing F–1 students 

while a qualifying H–1B cap-subject 

petition is pending. As an added 

integrity measure, DHS proposes to 

specify that the H–1B petition must be 

‘‘nonfrivolous’’ in order for the student 

to benefit from the cap-gap extension. 

See proposed 8 CFR 

214.2(f)(5)(vi)(A)(3). 

Each year, a number of U.S. 

employers seek to employ F–1 students 

via the H–1B program by requesting a 

COS and filing an H–1B cap petition 

with USCIS. Because petitioners may 

not file H–1B petitions more than six 

months before the date of actual need 

for the employee,73 the earliest date an 

H–1B cap-subject petition may be filed 

for a given fiscal year is April 1, six 

months prior to the start of the 

applicable fiscal year for which initial 

H–1B classification is sought. Many F– 

1 students complete a program of study 

or post-completion OPT in mid-spring 

or early summer. Per current 

regulations, after completing their 

program or post-completion OPT, F–1 

students have 60 days to depart the 

United States or take other appropriate 

steps to maintain a lawful status. See 8 

CFR 214.2(f)(5)(iv). However, because 

the change to H–1B status cannot occur 

earlier than October 1, an F–1 student 

whose program or post-completion OPT 

expires in mid-spring has two or more 

months following the 60-day period 

before the authorized period of H–1B 

status can begin. To address this 

situation, commonly known as the ‘‘capgap,’’ DHS established regulations that 

automatically extended F–1 Duration of 

Status (D/S) and, if applicable, postcompletion OPT employment 

authorization to October 1 for eligible 

F–1 students. See 8 CFR 214.2(f)(5)(vi). 

The extension of F–1 D/S and OPT 

employment authorization is commonly 

known as the ‘‘cap-gap extension.’’ 

DHS proposes to further extend F–1 

status and post-completion OPT, 

including STEM OPT, in this context.74

Under current regulations, the 

automatic cap-gap extension is valid 

only until October 1 of the fiscal year for 

which H–1B status is being requested. 

See 8 CFR 214.2(f)(5)(vi). When the 

October 1 extension was initially 

promulgated through an interim final 

rule in 2008, DHS considered it an 

administrative solution to bridge the gap 

between the end of the academic year 

and the beginning of the fiscal year, 

when the student’s H–1B status 

typically would begin.75 When this 


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Gap Relief for All F–1 Students With Pending H– 

1B Petitions,’’ 73 FR 18944 (Apr. 8, 2008). 

76See ‘‘Improving and Expanding Training 

Opportunities for F–1 Nonimmigrant Students With 

STEM Degrees and Cap-Gap Relief for All Eligible 

F–1 Students,’’ 81 FR 13039, 13100 (Mar. 11, 2016). 

77See 81 FR 13040, 13101 (Mar. 11, 2016). 

78 Id. 

79 Id. 

80See 8 CFR 214.2(f)(5)(iv). 

81USCIS, OP&S Policy Research Division (PRD), 

Computer-Linked Application Information 

Management System 3 (C3) database, Oct. 27, 2022. 

PRD187. 82See 81 FR 13039, 13101 (Mar. 11, 2016). 

provision was finalized in 2016, DHS 

responded to commenters requesting 

that DHS revise the cap-gap provision so 

as to automatically extend status and 

employment authorization ‘‘until 

adjudication of such H–1B petition is 

complete.’’ 76 Commenters stated that an 

extension until October 1 might have 

been appropriate in the past, when H– 

1B petitions were adjudicated well 

before that date, but USCIS workload 

issues at the time the rule was 

promulgated and the need to respond to 

RFEs delayed such adjudications 

beyond October 1.77 DHS responded 

that it recognized that some cap-subject 

H–1B petitions remain pending on or 

after October 1 of the relevant fiscal 

year, but that USCIS prioritizes petitions 

seeking a COS from F–1 to H–1B, which 

normally results in the timely 

adjudication of these requests, so the 

vast majority of F–1 students changing 

status to H–1B do not experience any 

gap in status.78 DHS also explained that 

it was concerned that extending cap-gap 

employment authorization beyond 

October 1 would reward potentially 

frivolous filings that would enable 

students who may ultimately be found 

not to qualify for H–1B status to 

continue to benefit from the cap-gap 

extension and that the October 1 cut-off 

serves to prevent possible abuse of the 

cap-gap extension.79

DHS has reconsidered its position in 

light of recent adjudication delays and 

to avoid potential disruptions in 

employment authorization. With the 

consistently high volume of cap-subject 

H–1B petitions filed within a short 

period of time each year and the long 

timeframes afforded to respond to RFEs, 

USCIS has, in some years, been unable 

to complete the adjudication of all H– 

1B cap-subject petitions by October 1. 

This has resulted in situations where 

some individuals must stop working on 

October 1 because the employment 

authorization provided under 8 CFR 

214.2(f)(5)(vi) ends on that date, 

although these individuals generally 

have been allowed to remain in the 

United States in an authorized period of 

stay while the H–1B petition and COS 

application is pending. 

To account for this operational issue, 

DHS is proposing to revise 8 CFR 

214.2(f)(5)(vi) to provide an automatic 

extension of F–1 status and postcompletion OPT, or 24-month extension 

of post-completion OPT, as applicable, 

until April 1 of the fiscal year for which 

the H–1B petition is filed, or until the 

validity start date of the approved H–1B 

petition, whichever is earlier. This 

provision would extend the student’s F– 

1 status and employment authorization, 

as applicable, automatically if a 

nonfrivolous H–1B petition requesting a 

COS is timely filed on behalf of the F– 

1 student. See proposed 8 CFR 

214.2(f)(5)(vi)(A). However, if the F–1 

student’s COS request is still pending at 

the end of the cap-gap period, then their 

employment authorization would 

terminate on March 31, and the F–1 

student would no longer be authorized 

for employment on this basis as of April 

1 of the fiscal year for which H–1B 

classification is sought. If the H–1B 

petition underlying the cap-gap 

extension is denied before April 1, then, 

consistent with existing USCIS practice, 

the F–1 beneficiary of the petition, as 

well as any F–2 dependents, would 

generally receive the standard F–1 grace 

period of 60 days to depart the United 

States or take other appropriate steps to 

maintain a lawful status.80 If the H–1B 

petition is still pending on April 1, then 

the beneficiary of the petition is no 

longer authorized for OPT and the 60- 

day grace period begins on April 1. The 

F–1 beneficiary may not work during 

the 60-day grace period. 

Changing the automatic extension end 

date from October 1 to April 1 of the 

relevant fiscal year would prevent the 

disruptions in employment 

authorization that some F–1 

nonimmigrants seeking cap-gap 

extensions have experienced over the 

past several years. DHS recognizes the 

hardships that a disruption in 

employment authorization could cause 

to both the affected individual and their 

employer and seeks to prevent potential 

future disruptions by extending cap-gap 

relief. According to USCIS data for FY 

2016–22, USCIS has adjudicated 

approximately 99 percent of H–1B capsubject petitions requesting a COS from 

F–1 to H–1B by April 1 of the relevant 

fiscal year.81 As a result of this proposed 

cap-gap extension, DHS expects USCIS 

would be able to adjudicate nearly all 

H–1B cap-subject petitions requesting a 

COS from F–1 to H–1B by the April 1 

deadline. 

In addition to avoiding employment 

disruptions, the lengthier extension of 

F–1 status and post-completion OPT or 

24-month extension of post-completion 

OPT employment authorization for 

students with pending H–1B petitions 

until April 1, which is one year from the 

typical initial cap filing start date, 

accounts for USCIS’ competing 

operational considerations and would 

enable the agency to balance workloads 

more appropriately for different types of 

petitions. 

Although DHS previously expressed 

the concern that extending cap-gap 

employment authorization could 

potentially enable students who 

ultimately may be found not to qualify 

for H–1B status to continue to benefit 

from the cap-gap extension,82 and thus 

encourage frivolous filings, DHS has 

reconsidered its position. It is now 

DHS’s position that extending the capgap period would not significantly 

increase the risk of frivolous filings. 

Because there is no way of knowing 

whether USCIS would complete 

adjudication of a petition before October 

1 or April 1 of the fiscal year, there 

should be little incentive to submit a 

frivolous filing solely to obtain the 

longer cap-gap extension period. The H– 

1B petition would still have to be filed 

with all appropriate fees, which can be 

substantial for an initial cap filing. 

Moreover, if the petition is denied, the 

beneficiary’s cap-gap eligibility ends 

immediately. Accordingly, frivolous 

petitions or petitions filed solely to 

obtain cap-gap protections would run 

the risk of simply being denied prior to 

October 1. This would result in no 

additional benefit from the expanded 

timeframe. Any risk of fraud is already 

inherent in providing cap-gap relief 

itself, and DHS is unaware of any 

additional risk presented by extending 

the cap-gap period. DHS proposes to 

explicitly state that the H–1B petition 

must be nonfrivolous at proposed 8 CFR 

214.2(f)(5)(vi)(A)(3) to further deter 

frivolous filings. This would bolster 

integrity because if USCIS determines 

the filing to be frivolous, then the 

beneficiary would not have qualified for 

the cap-gap protection and may be 

deemed to have failed to maintain status 

and, if applicable, worked without 

authorization. Given the importance of 

ensuring that the United States attracts 

and retains top talent from around the 

globe, DHS believes that the benefits of 

this proposed cap-gap extension far 

outweigh the risk of abuse. 

3. Start Date Flexibility for Certain H– 

1B Cap-Subject Petitions 

DHS proposes to eliminate all the text 

currently at 8 CFR 214.2(h)(8)(iii)(A)(4), 

which relates to a limitation on the 


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72888 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

83 DHS is proposing new language at 8 CFR 

214.2(h)(8)(iii)(A)(4) about selecting registrations 

based on unique beneficiaries. DHS discusses this 

proposal in detail in the preamble section 

describing the proposed changes to the H–1B 

registration system. 

84See USCIS, ‘‘H–1B Electronic Registration 

Process,’’ https://www.uscis.gov/working-in-theunited-states/temporary-workers/h-1b-specialtyoccupations-and-fashion-models/h-1b-electronicregistration-process (petitioners with a selected 

registration ‘‘must indicate a start date of Oct. 1 

. . . . or later’’) (last visited Nov. 10, 2022). 

85See USCIS, ‘‘USCIS Will Allow Resubmission 

of Certain FY 2021 H–1B Petitions Rejected or 

Closed Due to Start Date,’’ https://www.uscis.gov/ 

news/alerts/uscis-will-allow-resubmission-ofcertain-fy-2021-h-1b-petitions-rejected-or-closeddue-to-start-date (last visited Jan. 26, 2023). 86See USCIS, ‘‘H–1B Electronic Registration 

Process’’ (last reviewed/updated Apr. 25, 2022), 

https://www.uscis.gov/working-in-the-united-states/ 

temporary-workers/h-1b-specialty-occupations-andfashion-models/h-1b-electronic-registration-process 

(Q4: ‘‘If we selected your registration, you must 

indicate a start date of Oct. 1 . . . or later.’’). 87See 8 CFR 214.2(h)(2)(i)(I). 

88See id. 

89See USCIS, ‘‘H–1B Specialty Occupations, DOD 

Cooperative Research and Development Project 

Workers, and Fashion Models,’’ https://

www.uscis.gov/working-in-the-united-states/h-1bspecialty-occupations (‘‘A cap-subject H–1B 

petition will not be considered to be properly filed 

unless it is based on a valid, selected registration 

for the same beneficiary and the appropriate fiscal 

year’’.). 

requested start date, because the current 

regulatory language is ambiguous.83

DHS’s proposal to eliminate the current 

language at 8 CFR 214.2(h)(8)(iii)(A)(4) 

would provide clarity and flexibility to 

employers with regard to the start date 

listed on H–1B cap-subject petitions. 

This proposal also would align the 

regulations related to H–1B cap-subject 

petitions with current USCIS practice, 

which is to permit a requested petition 

start date of October 1 or later, as long 

as the requested petition start date does 

not exceed six months beyond the filing 

date of the petition, even during the 

initial registration period.84 Other 

restrictions on the petition start date 

would remain in place, such as the 

requirement that a petition may not be 

filed earlier than six months before the 

date of actual need. See 8 CFR 

214.2(h)(2)(i)(I). Additionally, a 

petitioner may file an H–1B cap-subject 

petition on behalf of a registered 

beneficiary for a particular fiscal year 

only after the petitioner’s registration for 

that beneficiary has been selected for 

that fiscal year. See 8 CFR 

214.2(h)(8)(iii)(A)(1). 

The current regulation at 8 CFR 

214.2(h)(8)(iii)(A)(4) states, ‘‘A 

petitioner may submit a registration 

during the initial registration period 

only if the requested start date for the 

beneficiary is the first day for the 

applicable fiscal year.’’ This language is 

ambiguous as to whether the ‘‘requested 

start date’’ is the start date of the 

registration or the petition. This has led 

to confusion as the H–1B cap 

registration system currently does not 

ask for the requested start date for the 

beneficiary. The start date would only 

be relevant upon the filing of the 

petition, but the regulation refers to 

submitting ‘‘a registration with a 

requested start date.’’ Further, current 8 

CFR 214.2(h)(8)(iii)(A)(4) states that, ‘‘If 

USCIS keeps the registration period 

open beyond the initial registration 

period, or determines that it is necessary 

to re-open the registration period, a 

petitioner may submit a registration 

with a requested start date after the first 

business day for the applicable fiscal 

year.’’ Given the potential for multiple 

registration periods, however, the 

current regulation is potentially 

confusing regarding the intended start 

date and what start date a petitioner is 

permitted to request on a cap-subject 

petition. 

As stated above, DHS’s proposal to 

eliminate the current language at 8 CFR 

214.2(h)(8)(iii)(A)(4) would provide 

clarity and flexibility to employers. The 

need to eliminate potential confusion 

regarding permissible requested start 

dates on cap-subject petitions emerged 

during the FY 2021 registration and 

filing season, the first year of the 

electronic registration process. The 

electronic registration period for FY 

2021 ran from March 1, 2020, to March 

20, 2020. First, USCIS selected 

registrations submitted on behalf of all 

beneficiaries, including those eligible 

for the advanced degree exemption. 

USCIS then selected from the remaining 

registrations a sufficient number 

projected to reach the advanced degree 

exemption. The selection process was 

completed on March 27, 2020, and 

USCIS began to notify employers of 

selection results. The initial petition 

filing period began on April 1, 2020, 

and lasted 90 days. Due to multiple 

factors occurring during the FY 2021 

registration and initial filing period 

(most notably that it was the first year 

that the electronic registration system 

was in place as well as it being the early 

months of the COVID–19 pandemic 

with its unforeseen consequences), 

USCIS received fewer petitions than 

projected as needed to reach the 

numerical allocations under the 

statutory cap and advanced degree 

exemption. In August 2020, USCIS 

selected additional registrations and 

permitted those prospective petitioners 

with a selected registration or 

registrations to file petitions before 

November 16, 2020. Due to the 

additional selection period, the filing 

window went beyond October 1, leading 

some petitioners to indicate a start date 

after October 1, 2020. 

Although USCIS permitted employers 

to file petitions after October 1, 2020, 

USCIS rejected or administratively 

closed many petitions that did not list 

a start date of October 1, 2020, pursuant 

to current 8 CFR 214.2(h)(8)(iii)(A)(4). 

As a result, many petitioners had to 

backdate the requested start date on the 

petition, even though the start date 

listed on the petition consequently may 

have been before the start date 

identified on the accompanying LCA. 

On June 23, 2021, USCIS announced its 

reconsideration of those rejected or 

administratively closed petitions.85 The 

agency announced that it would permit 

petitioners to resubmit any FY 2021 H– 

1B cap-subject petitions that were 

rejected or administratively closed 

solely because the petition requested a 

start date after October 1, 2020. 

The proposed changes would 

eliminate the language at current 8 CFR 

214.2(h)(8)(iii)(A)(4), which would 

clarify for petitioners that they may file 

H–1B cap-subject petitions with 

requested start dates that are after 

October 1 of the relevant fiscal year. 

This is consistent with current USCIS 

policy and would eliminate the 

potential confusion resulting from the 

current regulation with regard to 

permissible start dates for employers 

submitting H–1B cap-subject 

petitions.86 While the requested start 

date may be later than October 1, it must 

be six months or less from the date the 

petition is filed.87 If the requested start 

date is more than six months after the 

petition is filed, the petition will be 

denied or rejected.88

DHS’s proposal to eliminate the 

current language at 8 CFR 

214.2(h)(8)(iii)(A)(4) would not affect 

the requirement that an H—1B capsubject petition must be based on a 

valid registration for the same 

beneficiary and the same fiscal year. 

This requirement is reflected in existing 

USCIS guidance 89 and the current 

regulation at 8 CFR 

214.2(h)(8)(iii)(A)(1), which states that 

‘‘A petitioner may file an H–1B capsubject petition on behalf of a registered 

beneficiary only after the petitioner’s 

registration for that beneficiary has been 

selected for that fiscal year.’’ While DHS 

intends to remove this particular 

sentence at proposed 8 CFR 

214.2(h)(8)(iii)(A)(1) to reflect changes 

resulting from the beneficiary-centric 

selection process, DHS proposes to add 

the same requirement that the 

registration and petition be for the same 

fiscal year by adding ‘‘for the same fiscal 


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Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 72889 

90See ‘‘Registration Requirement for Petitioners 

Seeking To File H–1B Petitions on Behalf of CapSubject Aliens,’’ 84 FR 888 (Jan. 31, 2019). 

91See 8 CFR 214.2(h)(8)(iii)(E). 

92See ‘‘Registration Requirement for Petitioners 

Seeking To File H–1B Petitions on Behalf of CapSubject Aliens,’’ 83 FR 62406, 62407 (Dec. 3, 2018). 93 Id. at 62407–08. 

94See ‘‘Registration Requirement for Petitioners 

Seeking To File H–1B Petitions on Behalf of CapSubject Aliens,’’ 84 FR 888, 897 (Jan. 31, 2019). 

95See USCIS, ‘‘H–1B Electronic Registration 

Process’’ (last updated Apr. 25, 2022), https://

www.uscis.gov/working-in-the-united-states/ 

temporary-workers/h-1b-specialty-occupations-andfashion-models/h-1b-electronic-registration-process. 

96See American Immigration Lawyers 

Association, ‘‘USCIS Provides FY2022 H–1B Cap 

Registration Process Update,’’ https://www.aila.org/ 

infonet/fy2022-h-1b-cap-registration-processupdate. 

97See ‘‘Registration Requirement for Petitioners 

Seeking To File H–1B Petitions on Behalf of CapSubject Aliens,’’ 84 FR 888, 900, 904 (Jan. 31, 2019). 

98See id. at 900. 

99See Office of Management and Budget (OMB) 

Control Number 1615–0144, Information Collection 

Request Reference Number 202202–1615–005, 

supplementary document ‘‘H–1B Registration Tool 

Copy Deck,’’ https://www.reginfo.gov/public/do/ 

PRAViewDocument?ref_nbr=202202-1615-005 

(received by OMB’s Office of Information and 

Regulatory Affairs (OIRA) Feb. 28, 2022, and 

approved without change Aug. 8, 2022). 

year’’ to the immediately preceding 

sentence discussing the eligibility 

requirements to file an H—1B capsubject petition based on the 

registration. Thus, proposed 8 CFR 

214.2(h)(8)(iii)(A)(1) would state, ‘‘To be 

eligible to file a petition for a 

beneficiary who may be counted against 

the H–1B regular cap or the H–1B 

advanced degree exemption for a 

particular fiscal year, a registration must 

be properly submitted in accordance 

with 8 CFR 103.2(a)(1), paragraph 

(h)(8)(iii) of this section, and the form 

instructions, for the same fiscal year.’’ 

C. Program Integrity 

1. The H–1B Registration System 

Through issuance of a final rule in 

2019, Registration Requirement for 

Petitioners Seeking To File H–1B 

Petitions on Behalf of Cap-Subject 

Aliens, DHS developed a new way to 

administer the H–1B cap selection 

process to streamline processing and 

provide overall cost savings to 

employers seeking to file H–1B capsubject petitions.90 In 2020, USCIS 

implemented the first electronic 

registration process for the FY 2021 H– 

1B cap. In that year, prospective 

petitioners seeking to file H–1B capsubject petitions (including for 

beneficiaries eligible for the advanced 

degree exemption) were required to first 

electronically register and pay the 

associated H–1B registration fee for each 

prospective beneficiary. 

Under this process, prospective 

petitioners (also known as registrants) 

that seek to employ H–1B cap-subject 

workers must complete a registration 

process that requires only basic 

information about the prospective 

petitioner and each requested worker. 

The H–1B selection process is then run 

on properly submitted electronic 

registrations. Only those with valid 

selected registrations are eligible to file 

H–1B cap-subject petitions. 

Per regulation, USCIS takes into 

account historical data related to 

approvals, denials, revocations, and 

other relevant factors to calculate the 

number of petitions needed to meet the 

H–1B cap for a given fiscal year.91 In 

making this calculation, USCIS 

considers the number of registrations 

that need to be selected to receive the 

projected number of petitions required 

to meet the numerical limitations. 

As stated in the proposed rule for the 

registration requirement, DHS proposed 

this new process, ‘‘to reduce costs for 

petitioners who currently spend 

significant time and resources preparing 

petitions and supporting documentation 

for each intended beneficiary without 

knowing whether such petitions will be 

accepted for processing by USCIS due to 

the statutory allocations.’’ 92 DHS also 

explained that the registration process, 

‘‘would help to alleviate administrative 

burdens on USCIS service centers that 

process H–1B petitions since USCIS 

would no longer need to physically 

receive and handle hundreds of 

thousands of H–1B petitions (and the 

accompanying supporting 

documentation) before conducting the 

random selection process.’’ 93 Several 

stakeholders commented favorably on 

this proposal, noting that the 

registration requirement would ‘‘reduce 

waste and increase efficiency,’’ as well 

as ‘‘relieve uncertainty for employers 

and employees, and mitigate burdens on 

USCIS.’’ 94 The H–1B electronic 

registration process continues to be 

well-received by users, who provided a 

high satisfaction score with the system 

for FY 2023 (4.84 out of 5) 95 and FY 

2022 (4.87 out of 5).96

As DHS noted in the final rule 

implementing the registration system, 

USCIS has authority to collect sufficient 

information for each registration to 

mitigate the risk that the registration 

system will be flooded with frivolous 

registrations.97 For example, USCIS 

requires each registrant to complete an 

attestation and noted in the final rule 

that ‘‘individuals or entities who falsely 

attest to the bona fides of the 

registration and submitted frivolous 

registrations may be referred to 

appropriate Federal law enforcement 

agencies for investigation and further 

action as appropriate.’’ 98 DHS revised 

this attestation prior to the FY 2023 cap 

season, by adding a certification (to 

which the registrant must attest before 

submission) that the registration reflects 

a legitimate job offer, and that the 

registrant has ‘‘not worked with, or 

agreed to work with, another registrant, 

petitioner, agent, or other individual or 

entity to submit a registration to unfairly 

increase chances of selection for the 

beneficiary or beneficiaries in this 

submission.’’ 99 DHS continues to take 

steps against potential abuse and is in 

the process of investigating potential 

malfeasance and possible referrals to 

law enforcement agencies. However, the 

time needed to pursue potential bad 

actors supports an alternative solution. 

As a result, DHS has determined that a 

more effective way to ensure that the 

registration system continues to serve its 

purpose of fair and orderly 

administration of the annual H–1B 

numerical allocations would be to 

structurally limit the potential for bad 

actors to game the system by changing 

the selection process so that it selects by 

unique beneficiary rather than by 

registration. 

As detailed in the table below, DHS 

has seen an increase in the number of 

beneficiaries with multiple registrations 

submitted on their behalf, an increase in 

the number and percentage of 

registrations submitted for beneficiaries 

with multiple registrations, an increase 

in the number of beneficiaries having 

five or more registrations submitted on 

their behalf, and a substantial increase 

in the total number of registrations 

submitted for a unique individual. 

BILLING CODE 9111–97–P 


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72890 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

While DHS recognizes that simply 

being the beneficiary of multiple 

registrations is not necessarily 

indicative of fraud or misuse, as 

beneficiaries may legitimately have 

multiple job offers by different 

employers that are not working together 

to game the system, it is still worth 

noting the significant increase in 

individuals with multiple registrations 

for FY22 and FY23. For instance, while 

DHS is aware that multiple petitioners 

may submit registrations for a highly 

qualified beneficiary, it raises red flags 

if one beneficiary has 41 or 83 

registrations submitted on their behalf, 

which occurred in FY22 and FY23, 

respectively. 

Under current regulations, there is no 

limit on the number of registrations that 

may be submitted on behalf of one 

unique individual by different 

registrants. DHS is not proposing to 

limit the number of registrations that 

may be submitted on behalf of a unique 

individual by different registrants, 

provided that the registrants are not 

working with (or have not agreed to 

work with) another registrant, 

petitioner, agent, or other individual or 

entity to submit a registration to unfairly 

increase the chances of selection for a 

beneficiary. However, the data show 

that multiple registrations on behalf of 

the same individual are increasing. DHS 

is concerned that this increase in 

multiple registrations may indicate 

strategic behavior by registrants (and 

beneficiaries working with registrants) 

to submit increasing numbers of 

registrations, which may be frivolous, to 

greatly increase a beneficiary’s chance 

of selection. This negatively affects the 

integrity of the registration system and 

selection process. 

DHS is concerned that individuals 

with large numbers of registrations 

submitted on their behalf are potentially 

misusing the registration system to 

increase their chances of selection and 

that the registrations submitted may not 

represent legitimate job offers. The 

possible effect of this increase in 

multiple registrations, which potentially 

do not represent legitimate job offers, is 

to skew the selection process. 

Beneficiaries who have multiple 

registrations submitted on their behalf 

have a significantly higher chance of 

selection. At the same time, an 

individual’s chance of selection with a 

single registration is greatly reduced, as 

the number of beneficiaries with 

multiple registrations increases. 


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Registration Data for FY21-FY23 

Table 1 - Reeistration Data 

FY21 Cap Year FY22 Cap FY23 Cap Year 

Year 

Total Reeistrations 274 237 308 613 483 927 

Total number of unique 253,331 235,720 357,222 

beneficiaries* 

Number of unique 13,443 25,654 49,739 

beneficiaries with 2 or more 

reeistrations 

Total number of registrations 34,349 98,547 176,444 

submitted for beneficiaries 

with multiple reeistrations 

% of total registrations for 12.5% 31.9% 36.5% 

beneficiaries with multiple 

reeistrations 

Number of beneficiaries with 5 700 6,369 9,155 

or more reeistrations 

Largest number of 18 41 83 

registrations submitted for 1 

beneficiary 

Source: USCIS Office of Performance and Quality 

* Unique beneficiaries were identified using country of citizenship and passport number; if 

passport number was not available, name, date of birth, and country of birth were used to 

identify beneficiaries. 
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Table 2 - Detailed Data on FY21 Re2istration and Selection 

Count of 

Beneficiaries 

Number of Selected in 

Registrations First Random 

per Count of Percent of Selection Percent 

Beneficiary* Beneficiaries Beneficiaries Process Selected 

75 or more - 0.00% - NIA 

50 or more - 0.00% - NIA 

25 or more - 0.00% - NIA 

20 or more - 0.00% - NIA 

15 or more 7 0.00% 7 100.00% 

10 or more 289 0.11% 289 100.00% 

5 or more 700 0.28% 681 97.29% 

4 or more 1,259 0.50% 1,173 93.17% 

3 or more 3,205 1.27% 2,805 87.52% 

2 or more 13,443 5.31% 9,651 71.79% 

1 only 239,888 94.69% 108,389 45.18% 

Total 

beneficiaries 253,331 100.00% 118,040 46.60% 

Source: USCIS Office of Performance and Quality 

*Unique beneficiaries were identified using country of citizenship and passport 

number; if passport number was not available, name, date of birth, and country of birth 

were used to identify beneficiaries. 
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Table 3 - Detailed Data on FY22 Reeistration and Selection 

Count of 

Beneficiaries 

Number of Selected in 

Registrations First Random 

per Count of Percent of Selection Percent 

Beneficiary* Beneficiaries Beneficiaries Process Selected 

75 or more - 0.00% - NIA 

50 or more - 0.00% - NIA 

25 or more 44 0.02% 44 100.00% 

20 or more 122 0.05% 122 100.00% 

15 or more 392 0.17% 392 100.00% 

10 or more 1,421 0.60% 1,421 100.00% 

5 or more 6,369 2.70% 6,187 97.14% 

4 or more 8,743 3.71% 8,329 95.26% 

3 or more 13,289 5.64% 11,967 90.05% 

2 or more 25,654 10.88% 19,695 76.77% 

1 only 210,066 89.12% 86,816 41.33% 

Total 

beneficiaries 235,720 100.00% 106,511 45.19% 

Source: USCIS Office of Performance and Quality 

*Unique beneficiaries were identified using country of citizenship and passport 

number; if passport number was not available, name, date of birth, and country of birth 

were used to identify beneficiaries. 
Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 72893 

Registration data also show patterns 

of groups of companies submitting 

registrations for the same groups of 

beneficiaries. When selected, these 

companies then go on to file a minimal 

number of petitions compared to the 

number of registrations they submitted 

for those beneficiaries. The following 

tables exemplify how one group of 

companies has submitted large numbers 

of registrations for a smaller number of 

common beneficiaries over three fiscal 

years, with the vast majority of their 

total registrations made up of 

beneficiaries for whom other companies 

in the group also submitted 

registrations. 


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Table 4 - Detailed Data on FY23 Reeistration and Selection 

Count of 

Beneficiaries 

Number of Selected in 

Registrations First Random 

per Count of Percent of Selection Percent 

Beneficiary* Beneficiaries Beneficiaries Process Selected 

75 or more 2 0.00% 2 100.00% 

50 or more 5 0.00% 5 100.00% 

25 or more 108 0.03% 108 100.00% 

20 or more 246 0.07% 245 99.59% 

15 or more 670 0.19% 665 99.25% 

10 or more 2 322 0.65% 2,261 97.37% 

5 or more 9,155 2.56% 7,781 84.99% 

4 or more 14,261 3.99% 11,169 78.32% 

3 or more 24,321 6.81% 16,752 68.88% 

2 or more 49,739 13.92% 27,143 54.57% 

1 only 307,483 86.08% 81,323 26.45% 

Total 

beneficiaries 357,222 100.00% 108,466 30.36% 

Source: USCIS Office of Performance and Quality 

*Unique beneficiaries were identified using country of citizenship and passport 

number; if passport number was not available, name, date of birth, and country of birth 

were used to identify beneficiaries. 
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Table 5 - Common Beneficiary Data for Group 1 Companies - FY21 

Number of Common Average 

Common Beneficiary Registrations 

Registration Selection Petition Nonfiling Beneficiaries Rate of per 

Company Count Count Count Rate* ** Rew.strati on Beneficiary*** 

A 301 165 5 96.97% 301 100.00% 10.30 

B 288 161 5 96.89% 288 100.00% 10.21 

C 290 180 1 99.44% 290 100.00% 10.21 

D 302 153 8 94.77% 302 100.00% 10.21 

E 292 155 5 96.77% 291 99.66% 9.51 

F 327 179 4 97.77% 327 100.00% 6.15 

G 292 155 2 98.71% 292 100.00% 10.25 

H 302 161 6 96.27% 301 99.67% 9.52 

I 346 180 3 98.33% 334 96.53% 6.02 

J 298 172 3 98.26% 298 100.00% 10.31 

K 294 158 1 99.37% 294 100.00% 10.28 

L 285 145 7 95.17% 285 100.00% 10.21 

M 288 164 8 95.12% 287 99.65% 10.15 

Source: USCIS Office of Performance and Quality 

*"Nonfiling Rate" is defined as the percentage of registration selections that do not result in a 

petition being filed. 

**Unique beneficiaries were identified using country of citizenship and passport number; if 

passport number was not available, name, date of birth, and country of birth were used to identify 

beneficiaries. "Number of Common Beneficiaries" is defined as the number of beneficiaries who 

were registered for by the company and also at least one more company. 

***"Average Registrations per Beneficiary" is defined as the average number of companies that 

the beneficiaries of the particular company were registered for in the registration. 
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Table 6 -- Common Beneficiary Data for Group 1 Companies - FY22 

Number of Common Average 

Common Beneficiary Registrations 

Registration Selection Petition Nonfiling Beneficiaries Rate of per 

Company Count Count Count Rate* ** Rew.strati on Beneficiary*** 

A 321 173 10 94.22% 321 100.00% 10.24 

B 322 165 13 92.12% 322 100.00% 10.09 

C 320 158 10 93.67% 320 100.00% 10.30 

D 326 153 11 92.81% 325 99.69% 9.70 

E 325 166 7 95.78% 325 100.00% 9.77 

F 323 160 8 95.00% 323 100.00% 9.84 

G 316 178 19 89.33% 316 100.00% 10.69 

H 315 162 10 93.83% 315 100.00% 10.44 

I 327 183 14 92.35% 327 100.00% 9.69 

J 322 180 15 91.67% 322 100.00% 10.02 

K 325 166 9 94.58% 325 100.00% 9.71 

L 327 170 10 94.12% 327 100.00% 9.97 

M 331 184 8 95.65% 331 100.00% 9.50 

Source: USCIS Office of Performance and Quality 

*"Nonfiling Rate" is defined as the percentage of registration selections that do not result in a 

petition being filed. 

**Unique beneficiaries were identified using country of citizenship and passport number; if 

passport number was not available, name, date of birth, and country of birth were used to identify 

beneficiaries. "Number of Common Beneficiaries" is defined as the number of beneficiaries who 

were registered for by the company and also at least one more company. 

***"Average Registrations per Beneficiary" is defined as the average number of companies that 

the beneficiaries of the particular company were registered for in the registration. 
72896 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

The degree of duplication between the 

companies raises concern that the 

companies are working with each other 

to increase their chances of selection. 

This coupled with the fact that the 

companies routinely have over 150 

registrations selected each year, but only 

file between 1 and 19 petitions, suggests 

that the registrations submitted by the 

companies for the duplicate 

beneficiaries may not have represented 

legitimate, bona fide offers of 

employment. This practice creates a 

disadvantage for companies that are 

adhering to the requirements of the 

registration and selection process. 

Although there may have been 

legitimate reasons why a company did 

not file a petition for a beneficiary 

whose registration was selected, the 

non-filing rates for beneficiaries with 

multiple registrations is significantly 

higher than that of beneficiaries with 

single registrations. The non-filing rates 

for beneficiaries with multiple 

registrations raises the question of 

whether these companies actually 

intended to file an H–1B petition on 

behalf of the beneficiary when they 

submitted their registrations and did not 

work with others to unfairly improve 

their chance of selection, as they 

attested to on the Registration Tool 

when each registration was submitted. 


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Table 7 - Common Beneficiary Data for Group 1 Companies - FY23 

Number of Common Average 

Common Beneficiary Registrations 

Registration Selection Petition Nonfiling Beneficiaries Rate of per 

Company Count Count Count Rate* ** Rew.stration Beneficiary*** 

A 540 180 4 97.78% 540 100.00% 14.68 

B 544 182 8 95.60% 544 100.00% 14.56 

C 561 189 7 96.30% 560 99.82% 14.27 

D 563 181 9 95.03% 563 100.00% 14.39 

E 562 175 7 96.00% 562 100.00% 14.50 

F 543 198 8 95.96% 542 99.82% 14.69 

G 526 204 5 97.55% 526 100.00% 14.85 

H 529 191 9 95.29% 528 99.81% 14.88 

I 536 196 10 94.90% 536 100.00% 14.77 

J 547 212 10 95.28% 545 99.63% 14.74 

K 555 205 11 94.63% 555 100.00% 14.27 

L 556 199 9 95.48% 556 100.00% 14.87 

M 559 198 10 94.95% 558 99.82% 14.46 

Source: USCIS Office of Performance and Quality 

*"Nonfiling Rate" is defined as the percentage of registration selections that do not result in a 

petition being filed. 

**Unique beneficiaries were identified using country of citizenship and passport number; if 

passport number was not available, name, date of birth, and country of birth were used to identify 

beneficiaries. "Number of Common Beneficiaries" is defined as the number of beneficiaries who 

were registered for by the company and also at least one more company. 

***"Average Registrations per Beneficiary" is defined as the average number of companies that 

the beneficiaries of the particular company were registered for in the registration. 
Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 72897 

100See ‘‘Identifying Barriers Across U.S. 

Citizenship and Immigration Services (USCIS) 

Benefits and Services; Request for Public Input,’’ 86 

FR 20398 (Apr. 19, 2021). 

101 In U.S. Citizenship and Immigration Services 

Fee Schedule and Changes to Certain Other 

Immigration Benefit Request Requirements, 88 FR 

402, 527 (Jan. 4, 2023) (proposed rule), DHS 

proposed to increase the H–1B registration fee from 

$10 to $215 per registration submitted. While the 

underlying purpose of the proposed fee increase is 

to ensure full cost recovery for USCIS adjudication 

and naturalization services, DHS recognizes the 

possibility that the increase in the H–1B registration 

fee may have an impact on the number of H–1B 

registrations submitted, including those submitted 

to improperly increase the chance of selection. 

However, any potential impact of that separate 

regulatory proposal is purely speculative. 102See 8 CFR 214.2(h)(2)(i)(G). 

BILLING CODE 9111–97–C 

The registration data also show that 

the companies with the highest rates of 

non-filing submitted a high percentage 

of registrations for beneficiaries with 

multiple registrations. In FY23, 97 

companies with 10 or more selections 

had a non-filing rate of 90 percent or 

greater. Of those 97, the average rate of 

common beneficiaries among them was 

90.72 percent. Eighteen of the 97 

companies had a common beneficiary 

rate of 100 percent. Amongst these 97 

companies, the average number of 

registrations per beneficiary was 8.03. In 

contrast, the companies with 10 or more 

selections and a non-filing rate of 10 

percent or less, of which there were 667, 

had an average rate of common 

beneficiaries of 8.01 percent and 

submitted registrations for beneficiaries 

who had an average of 1.40 registrations 

per beneficiary. 

Stakeholders have also identified 

opportunities for improving the 

registration system in response to a DHS 

Request for Public Input.100 For 

instance, several commenters suggested 

running the selection process based on 

unique beneficiaries instead of 

registrations to give all beneficiaries an 

equal playing field, which is what DHS 

is proposing with the beneficiary-centric 

option described below. Commenters 

also made general suggestions to 

strengthen the consequences of 

submitting frivolous registrations, 

which DHS agrees with and has 

expanded upon in its proposals. 

DHS has a strong interest in ensuring 

that the annual numerical allocations 

are going to petitioners that truly intend 

to employ an H–1B worker, rather than 

prospective petitioners using the 

registration system as a relatively cheap 

placeholder for the possibility that they 

may want to employ an H–1B worker or 

as a way to game the selection process. 

The current registration and selection 

process would benefit from additional 

guardrails to better ensure the fair 

allocation of the limited H–1B cap 

numbers to employers and individuals 

that are complying with the regulations 

and have bona fide, legitimate 

employment in which they intend to 

employ qualified beneficiaries. 

Accordingly, this rule proposes to 

further limit the potential for abuse of 

the registration process in three ways.101

First, if USCIS determines that a 

random selection process should be 

conducted, DHS proposes to shift from 

selecting by registration, to selecting by 

unique beneficiary. Under the new 

proposal, each unique individual who 

has a registration submitted on their 

behalf would be entered into the 

selection process once, regardless of the 

number of registrations filed on their 

behalf. By selecting by a unique 

beneficiary, DHS would better ensure 

that each individual has the same 

chance of being selected, regardless of 

how many registrations were submitted 

on their behalf. 

Second, DHS proposes to extend the 

existing prohibition on related entities 

filing multiple petitions102 by also 

prohibiting related entities from 

submitting multiple registrations for the 

same individual. Prohibiting related 

employers from submitting multiple 

registrations, absent a legitimate 

business need, would prevent 

employers from submitting registrations 

when they would not in fact be eligible 

to file a petition based on that 

registration, if selected. 

Third, DHS proposes to codify 

USCIS’s ability to deny an H–1B 

petition or revoke an H–1B petition’s 

approval when the petition is based on 

a registration where the statement of 

facts (including the attestations) was not 

true and correct, inaccurate, fraudulent, 

or misrepresented a material fact. 

2. Beneficiary Centric Selection 

Under the proposed update to the 

random selection process, registrants 


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Table 8 - Selection and Petition Filin2 Data 

FY21 FY22 FY23 

Number of registrations selected where 

the beneficiary only had one registration 

submitted and one registration selected 

(single registration) 108,389 86,816 81,323 

Number of these single registrations that 

resulted in petition filing 91,925 74,048 72,306 

Filing rate of single registrations 84.81% 85.29% 88.91% 

Number of registrations selected where 

the beneficiary had multiple registrations 

submitted and multiple registrations 

selected (multiple registration) 10,504 36,461 29,213 

Number of these multiple registrations 

that resulted in petition filing 3,835 9,757 8,831 

Filing rate of multiple registrations 36.51% 26.76% 30.23% 

Source: USCIS Office of Performance and Quality 
72898 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

103 In response to a comment in the final rule, 

DHS responded, ‘‘This final rule requires that each 

registration include, in addition to other basic 

information, the beneficiary’s full name, date of 

birth, country of birth, country of citizenship, 

gender, and passport number.’’ ‘‘Registration 

Requirement for Petitioners Seeking To File H–1B 

Petitions on Behalf of Cap-Subject Aliens,’’ 84 FR 

888, 900 (Jan. 31, 2019). 

would continue to submit registrations 

on behalf of beneficiaries and 

beneficiaries would continue to be able 

to have more than one registration 

submitted on their behalf, as allowed by 

applicable regulations. If a random 

selection were necessary, then the 

selection would be based on each 

unique beneficiary identified in the 

registration pool, rather than each 

registration. Each unique beneficiary 

would be entered in the selection 

process once, regardless of how many 

registrations were submitted on their 

behalf. If a beneficiary were selected, 

each registrant that submitted a 

registration on that beneficiary’s behalf 

would be notified of selection and 

would be eligible to file a petition on 

that beneficiary’s behalf. See proposed 8 

CFR 214.2(h)(8)(iii)(A)(1) and (4). 

Changing how USCIS conducts the 

selection process to select by unique 

beneficiaries instead of registrations 

would significantly reduce or eliminate 

the advantage of submitting multiple 

registrations for the same beneficiary 

solely to increase the chances of 

selection and should give all 

beneficiaries an equal chance at 

selection. It could also result in other 

benefits, such as giving beneficiaries 

greater autonomy regarding their H–1B 

employment and improving the chances 

of selection for legitimate registrations. 

To ensure that USCIS can accurately 

identify each potential beneficiary, 

registrants will continue to be required 

to submit identifying information about 

the beneficiaries as part of the 

registration process. Currently, each 

registration includes, in addition to 

other basic information, fields for the 

registrant to provide the beneficiary’s 

full name, date of birth, country of birth, 

country of citizenship, gender, and 

passport number if the beneficiary has 

a passport. Although the Registration 

Final Rule said the passport number 

would be required and it is requested 

during registration, registrants have 

been able to effectively bypass the 

passport requirement by affirmatively 

indicating that the beneficiary does not 

have a passport.103

Because the integrity of the new 

selection process would rely on USCIS’s 

ability to accurately identify each 

individual beneficiary, DHS proposes to 

require the submission of valid passport 

information, including the passport 

number, country of issuance, and 

expiration date, in addition to the 

currently required information. See 

proposed 8 CFR 214.2(h)(8)(iii)(A)(4)(ii). 

Registrants would no longer be allowed 

to select an option indicating that the 

beneficiary does not have a passport. 

Combined with the other collected 

biographical information, the passport 

number would allow USCIS to identify 

unique individuals more reliably, 

increasing the likelihood that each 

individual would have the same 

opportunity to be selected, if random 

selection were required. Beneficiaries 

would be required to supply the same 

identifying information and passport 

information to all registrants submitting 

registrations on their behalf. Each 

beneficiary would only be able to be 

registered under one passport, and the 

registrant would be required to submit 

the information from the valid passport 

that the beneficiary intends to use for 

travel to the United States if issued an 

H–1B visa. If the beneficiary were 

already in the United States and were 

seeking a COS, the registrant would be 

required to list a valid passport. See 

proposed 8 CFR 214.2(h)(8)(iii)(A)(4)(ii). 

Even if a beneficiary had more than one 

valid passport, such as a beneficiary 

with dual citizenship, a beneficiary 

would only be able to be registered 

under one of those passports. If USCIS 

determined that registrations were 

submitted by either the same or 

different prospective petitioners for the 

same beneficiary, but using different 

identifying information, USCIS could 

find all of those registrations invalid 

and could deny or revoke the approval 

of any petition filed based on those 

registrations. See proposed 8 CFR 

214.2(h)(8)(iii)(A)(2). Petitioners would 

be given notice and the opportunity to 

respond before USCIS denied or 

revoked the approval of a petition. 

Petitioners would be asked to explain 

and document the identifying 

information used in the registration 

process. Petitioners would be 

encouraged to retain documentation 

provided by the beneficiary prior to 

registration, including a copy of the 

passport. 

Any H–1B cap-subject petition must 

contain and be supported by the same 

identifying information about the 

beneficiary as provided in the selected 

registration for the beneficiary named in 

the petition, and DHS proposes to 

require that petitioners submit evidence 

of the passport used at the time of 

registration to identify the beneficiary. 

See proposed 8 CFR 

214.2(h)(8)(iii)(D)(1). USCIS could deny 

or revoke the approval of an H–1B 

petition that does not meet this 

proposed requirement. USCIS would 

typically afford the petitioner the 

opportunity to respond when 

identifying information provided on the 

registration does not match the 

information provided on the petition, 

and petitioners would need to be 

prepared to explain and document the 

reason for any change in identifying 

information. In its discretion, USCIS 

could find that a change in identifying 

information is permissible. Such 

circumstances could include, but would 

not be limited to, a legal name change 

due to marriage, change in gender 

identity, or a change in passport number 

or expiration date due to passport 

renewal, or replacement of a stolen 

passport, in between the time of 

registration and filing the petition. See 

proposed 8 CFR 214.2(h)(8)(iii)(D)(1). 

DHS recognizes that some individuals 

may not possess a valid passport, and 

therefore the proposed passport 

requirement would require these 

individuals to obtain a valid passport, at 

some cost, by the time of registration or 

even preclude individuals from being 

registered if they were unable to obtain 

a valid passport by the time of 

registration. However, DHS has a strong 

interest in requiring passport 

information for each beneficiary, 

regardless of nationality, to better 

identify unique beneficiaries and 

enhance the integrity of the H–1B 

registration system. Further, DHS 

believes that requiring passport 

information is reasonable because each 

registration should represent a 

legitimate job offer. Except in limited 

situations where the Department of 

State issued a beneficiary a visa on 

Form DS–232, Unrecognized Passport or 

Waiver Cases, in the absence of a 

passport, it is not clear how most 

beneficiaries could enter the United 

States in H–1B status pursuant to that 

job offer. Therefore, the proposed rule, 

if finalized, would only accelerate the 

time by which the beneficiary needed to 

obtain a passport if the beneficiary did 

not already have a passport. 

DHS recognizes that stateless 

individuals may be unable to obtain a 

valid passport and that this passport 

requirement could preclude some 

stateless individuals from being 

registered. DHS considered proposing 

an exception to the passport 

requirement limited solely to stateless 

individuals, but providing an exception 

would leave open the risk of registrants 

submitting a registration for an 

individual claiming to be stateless and 

having no passport number and 

submitting another registration for the 


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Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 72899 

104See ‘‘Registration Requirement for Petitioners 

Seeking To File H–1B Petitions on Behalf of CapSubject Aliens,’’ 84 FR 888, 900 (Jan. 31, 2019). 

105See USCIS, OP&S Policy Research Division 

(PRD), I–129—H–1B Petitions reported with 

Stateless Country of Citizenship, ELIS Petitions FYs 

2020–23, PRD 252. The reported numbers do not 

include beneficiaries whose country of citizenship 

information was missing, blank, or unknown. The 

reported numbers for FY 2020 and FY 2021 were 

both zero, as USCIS was not using ELIS at that time. 

106 DOS, ‘‘Visa Statistics,’’ https://travel.state.gov/ 

content/travel/en/legal/visa-law0/visastatistics.html (last visited Mar. 16, 2023). 

same individual while listing a passport 

number. At the registration stage, USCIS 

would not be able to determine whether 

those two individuals are the same 

person or whether the individual is 

truly stateless. Such a determination 

would require an adjudication of the 

claim of statelessness, but USCIS does 

not adjudicate the registration. 

Submission of the registration is merely 

an antecedent procedural requirement 

to file the petition properly and is not 

intended to replace the petition 

adjudication process or assess the 

eligibility of the beneficiary for the 

offered position.104 DHS also considered 

the possibility of generating a unique 

identifier for stateless individuals, so 

that registrants could use this number in 

place of the valid passport number on 

the registration, but believed this option 

would run into the same problems of 

USCIS not being able to verify a claim 

of statelessness at the registration stage. 

Furthermore, DHS considered 

available data for individuals issued H– 

1B visas or otherwise granted H–1B 

status from FYs 2010–23. While the data 

are imperfect, the data nevertheless 

suggest that the proposed passport 

requirement would likely impact a 

small population of stateless 

individuals. For instance, available data 

for FYs 2022 and 2023 show that USCIS 

received H–1B petitions for nine and 

four individuals, out of a total of 

370,110 and 94,649 H–1B petitions, 

respectively, whose country of 

citizenship were listed as ‘‘stateless.’’ 105

This represents just 0.0024 percent and 

0.0042 percent, respectively, of all H–1B 

petitions received those fiscal years. 

These data do not show whether the 

stateless individuals had a valid 

passport upon their admission into the 

United States in H–1B status; these data 

also do not show whether any of the 

four individuals for FY 2023 were the 

same as some of the nine individuals 

reported for FY 2022. Further, the DOS 

data show that, between FYs 2010–22, 

a total of 89 H–1B visas out of a total 

of 1,988,856 H–1B visas were issued to 

individuals whose nationalities were 

listed as ‘‘no nationality.’’ 106 This total 

represents just 0.0045 percent of all H– 

1B visas issued during those years. 

These data do not show how many of 

the 89 total H–1B visas were issued to 

unique individuals, as individuals 

could have been issued more than one 

visa during this twelve-year timeframe. 

Again, while acknowledging that the 

above data are imperfect, DHS 

recognizes that not providing an 

exception or alternative to the passport 

requirement would potentially impact 

stateless individuals who might be 

approved for H–1B visas but would be 

ineligible because they are unable to 

obtain a passport. DHS continues to 

consider options and alternatives to the 

passport requirement for stateless 

individuals and welcomes public 

comment on this issue as well as the 

costs and benefits for both petitioners 

and beneficiaries of requiring a passport 

number at registration. 

As discussed above, conducting the 

registration selection process based on 

unique beneficiaries would significantly 

reduce or remove the advantage of 

submitting multiple registrations solely 

to increase the chances of selection and 

better allow for an equal playing field 

for both employers and beneficiaries, 

while continuing to allow beneficiaries 

to have multiple job offers and multiple 

registrations. This would significantly 

reduce or remove an incentive for 

employers and individuals to pursue 

registration without the existence of a 

bona fide job offer and an intent to 

employ the individual for each 

registration. 

The proposed change would 

potentially benefit beneficiaries by 

giving them greater autonomy to choose 

the employer for whom they ultimately 

work. If multiple unrelated companies 

submitted registrations for a beneficiary 

and the beneficiary were selected, then 

the beneficiary could have greater 

bargaining power or flexibility to 

determine which company or 

companies could submit an H–1B 

petition for the beneficiary, because all 

of the companies that submitted a 

registration for that unique beneficiary 

would be notified that their registration 

was selected and they are eligible to file 

a petition on behalf of that beneficiary. 

Under the current selection process, 

however, the beneficiary could only be 

petitioned for by the specific company 

that submitted the selected registration. 

While another company could 

subsequently file a petition for 

concurrent employment, the beneficiary 

would still have to be initially 

employed in H–1B status by the same 

company that filed the initial capsubject petition based on the selected 

registration. 

The proposed change may also 

potentially benefit companies that 

submit legitimate registrations for 

unique beneficiaries by increasing their 

chances to employ a specific beneficiary 

in H–1B status. Again, under the current 

selection process, a company could file 

a petition for and employ a beneficiary 

in H–1B status only if their registration 

for that specific beneficiary was 

selected. Under the proposed 

beneficiary-centric selection process, 

any company that submitted a 

registration for a selected beneficiary 

could file a petition for and potentially 

employ a beneficiary in H–1B status 

because all of the prospective 

petitioners that submitted a registration 

for that selected beneficiary would 

receive a selection notice. As previously 

discussed, the data show that the 

current system may result in an unfair 

advantage of selection for registrations 

potentially involving prospective 

petitioners that worked together to 

submit multiple registrations for the 

same beneficiary to unfairly improve 

their chance of selection. The 

beneficiary-centric process is intended 

to correct this and level the playing field 

for companies submitting legitimate 

registrations for unique beneficiaries 

and not attempting to unfairly improve 

their chance of selection. 

DHS is also proposing minor changes 

to 8 CFR 214.2(h)(8)(iii)(A)(5) through 

(7) and (h)(8)(iii)(E) to conform the 

regulatory text to the proposed new 

selection process and clarify that USCIS 

would select ‘‘beneficiaries’’ rather than 

‘‘registrations.’’ 

DHS expects USCIS to have sufficient 

time to develop, thoroughly test, and 

implement the modifications to the 

registration system and selection 

process and give stakeholders sufficient 

time to adjust to these new procedures 

by the time the rule finalizing this 

proposed rule would publish and 

become effective. USCIS has already 

begun planning the development work 

of the new selection process in the 

electronic H–1B registration tool. As 

indicated before, DHS may move to 

finalize certain provisions through one 

or more final rules after carefully 

considering all public comments and 

may possibly do so in time for the FY 

2025 cap season, depending on agency 

resources. In particular, DHS may seek 

to finalize the provisions relating to the 

beneficiary centric registration selection 

process in proposed 8 CFR 

214.2(h)(8)(iii)(A)(4) before moving to 

finalize the other proposed provisions 

in a separate rule. 

However, DHS and USCIS cannot 

predict, with certainty, agency resources 

for the next few years or even when the 


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72900 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

107See 8 CFR 214.2(h)(10)(ii) and 

(h)(11)(iii)(A)(2). 

final rule would publish. Therefore, 

there is also the possibility that DHS 

would need to delay the effective date 

of 8 CFR 214.2(h)(8)(iii)(A)(4). This 

delayed effective date might only apply 

to the proposed changes describing the 

beneficiary-centric selection process 

and, in that case, would not impact any 

other provisions in this proposed rule, 

if finalized. 

DHS may need to delay the effective 

date if it determines that USCIS does 

not have sufficient time to ensure 

proper functionality of the beneficiarycentric selection process, including 

completing all requisite user testing. 

DHS may need to delay the effective 

date for other reasons as well, such as 

to avoid the confusion that could result 

if the final rule took effect too close to 

the start of the initial registration period 

for the upcoming cap season, or to avoid 

disparate treatment of registrations if the 

final rule took effect in the middle of the 

initial registration period, or during a 

subsequent registration and selection 

period, particularly if USCIS needed to 

open a subsequent registration period 

later that year. In the event DHS needed 

to further delay the effective date of 

these provisions beyond the effective 

date of the final rule, DHS would 

publish a Federal Register Notice 

advising the regulated public of the new 

delayed effective date. That Federal 

Register Notice would be published at 

least 30 calendar days in advance of the 

first date of the initial registration 

period. 

3. Bar on Multiple Registrations 

Submitted by Related Entities 

DHS regulations already preclude the 

filing of multiple H–1B cap-subject 

petitions by related entities for the same 

beneficiary, unless the related 

petitioners can establish a legitimate 

business need for filing multiple capsubject petitions for the same 

beneficiary. See 8 CFR 214.2(h)(2)(i)(G). 

DHS is not proposing to change that, 

but, rather, is proposing to extend a 

similar limitation to the submission of 

registrations. See proposed 8 CFR 

214.2(h)(2)(i)(G). When an employer 

submits a registration, they attest on the 

H–1B Registration Tool that they intend 

to file a petition based on that 

registration. If two related employers 

submit registrations for a cap-subject 

petition for the same beneficiary, 

without a legitimate business need, both 

employers are attesting to their intent to 

file a petition for that beneficiary. If they 

are both selected, and they lack a 

legitimate business need, they are left 

with one of two choices: (1) both file 

petitions in violation of 8 CFR 

214.2(h)(2)(i)(G); or (2) do not file and 

potentially violate the attestation made 

at the time of registration. Therefore, 

employers are left with two bad options. 

To allow related employers to submit 

registrations, but not allow them to file 

petitions, creates an inconsistency 

between the antecedent procedural step 

of registration and the petition filing. 

Extending the bar on multiple petition 

filings by related entities to multiple 

registration submissions by related 

entities for the same cap-subject 

beneficiary would harmonize the 

expectations for petition filing and 

registration submission. 

While DHS anticipates that changing 

the way beneficiaries are selected would 

reduce frivolous registrations and their 

negative effects, DHS cannot guarantee 

with certainty that this change would 

completely eliminate entities from 

working with each other to submit 

registrations to unfairly increase 

chances of selection for a beneficiary by 

submitting slightly different identifying 

information or other means that DHS 

cannot anticipate. Therefore, adding this 

provision would serve as an additional 

tool available to DHS to militate against 

such abuse and bolster the integrity of 

the registration process. Furthermore, 

proposed 8 CFR 214.2(h)(2)(i)(G) is 

necessary because of the possibility that 

registration could be suspended, or that 

the implementation of the beneficiarycentric selection process could be 

delayed. If registration were suspended, 

the bar on multiple petitions would still 

be relevant, and if implementation of 

the beneficiary-centric selection process 

were delayed, the bar on multiple 

registrations would still be relevant. 

4. Registrations With False Information 

or That Are Otherwise Invalid 

Although registration is an antecedent 

procedural step undertaken prior to 

filing an H–1B cap-subject petition, the 

validity of the registration information 

is key to the registrant’s eligibility to file 

a petition. The information contained in 

the registration, including the required 

attestations, must be valid. Currently, 

the regulations state that it is grounds 

for denial or revocation if the statements 

of facts contained in the petition are not 

true and correct, inaccurate, fraudulent, 

or misrepresented a material fact.107 In 

this rule, DHS proposes to codify that 

those requirements extend to the 

information provided in the registration 

and to make clear that this includes if 

attestations on the registration are 

determined to be false. See proposed 8 

CFR 214.2(h)(10)(ii) and (iii) and 

(h)(11)(iii)(A)(2). 

To allow companies to provide false 

information on the registration without 

consequence would allow them to 

potentially take a cap number for which 

they are ineligible. As such, DHS 

proposes codifying that providing 

untrue, incorrect, inaccurate, or 

fraudulent statements of fact, or 

misrepresenting material facts, 

including providing false attestations on 

the registration, would be grounds for 

denial or revocation of the petition that 

was based on that registration. 

DHS is also proposing changes to the 

regulations governing registration that 

would provide USCIS with clearer 

authority to deny or revoke the approval 

of a petition based on a registration that 

was not properly submitted or was 

otherwise invalid. Specifically, DHS is 

proposing to add that if a petitioner 

submits more than one registration per 

beneficiary in the same fiscal year, all 

registrations submitted by that 

petitioner relating to that beneficiary for 

that fiscal year may be considered not 

only invalid, but that ‘‘USCIS may deny 

or revoke the approval of any petition 

filed for the beneficiary based on those 

registrations.’’ See proposed 8 CFR 

214.2(h)(8)(iii)(A)(2). 

Additionally, DHS is proposing to add 

that USCIS may deny or revoke the 

approval of an H–1B petition if it 

determines that the fee associated with 

the registration is declined, not 

reconciled, disputed, or otherwise 

invalid after submission. See proposed 

8 CFR 214.2(h)(8)(iii)(D)(2). DHS is also 

proposing a new provision that adds an 

invalid registration as a ground for 

revocation. See proposed 8 CFR 

214.2(h)(11)(iii)(A)(6). Through these 

provisions, DHS aims to bolster the 

integrity of the registration system. 

5. Alternatives Considered 

DHS considered the alternative of 

eliminating the registration system and 

reverting to the paper-based filing 

system stakeholders used prior to 

implementing registration. However, 

when DHS considered the immense cost 

savings that registration provides to 

both USCIS and stakeholders and the 

significant resources the agency would 

incur to revert back to a paper-based 

filing system for all cap-subject cases, 

the benefits of having a registration 

system still outweigh the costs and any 

potential problems caused by frivolous 

filings. As a result, DHS is proposing to 

make changes to the registration system 

to improve it and militate against the 

potential for frivolous filings. DHS 

continues to consider options to 


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Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 72901 

108See 3 David M. Adlerstein et at., Successful 

Partnering Between Inside and Outside Counsel sec. 

49:35. 

109See 3 David M. Adlerstein et at., Successful 

Partnering Between Inside and Outside Counsel sec. 

49:37. 

110When requested evidence may contain trade 

secrets, for example, the petitioner may redact or 

sanitize the relevant sections to provide a document 

that is still sufficiently detailed and comprehensive, 

yet does not reveal sensitive commercial 

information. However, it is critical that the 

unredacted information contain all information 

necessary for USCIS to adjudicate the petition. 

Although a petitioner may always refuse to submit 

confidential commercial information, if it is 

deemed too sensitive, the petitioner must also 

satisfy the burden of proof and runs the risk of 

denial. Cf. Matter of Marques, 16 I&N Dec. 314, 316 

(BIA 1977) (in refusing to disclose material and 

relevant information that is within his knowledge, 

the respondent runs the risk that he may fail to 

carry his burden of persuasion with respect to his 

application for relief). 

111See USCIS, ‘‘Rescission of Policy 

Memoranda,’’ PM–602–0114 (June 17, 2020) (citing 

Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010)). 

112See ‘‘Petitioning Requirements for the H 

Nonimmigrant Classification,’’ 63 FR 30419, 30419– 

30420 (June 4, 1998) (proposed rule to be codified 

at 8 CFR part 214). 

improve the registration system and 

welcomes public comment on this issue. 

6. Provisions To Ensure Bona Fide Job 

Offer for a Specialty Occupation 

Position 

a. Contracts 

Under proposed 8 CFR 

214.2(h)(4)(iv)(C), DHS proposes to 

codify USCIS’ authority to request 

contracts, work orders, or similar 

evidence, in accordance with 8 CFR 

103.2(b) (USCIS may request additional 

evidence if the evidence submitted does 

not establish eligibility) and 8 CFR 

214.2(h)(9) (‘‘USCIS will consider all the 

evidence submitted and any other 

evidence independently required to 

assist in adjudication.’’). Such evidence 

may take the form of contracts or legal 

agreements, if available, or other 

evidence including technical 

documentation, milestone tables, or 

statements of work. Evidence submitted 

should show the contractual 

relationship between all parties, the 

terms and conditions of the 

beneficiary’s work, and the minimum 

educational requirements to perform the 

duties. Uncorroborated statements about 

a claimed in-house project for a 

company with no history of developing 

projects in-house, standing alone, would 

generally be insufficient to establish that 

the claimed in-house work exists. 

The submitted contracts should 

include both the master services 

agreement and accompanying 

statement(s) of work (or similar legally 

binding agreements under different 

titles) signed by an authorized official of 

any party in the contractual chain, 

including the petitioner, the end-client 

company for which the beneficiary will 

perform work, and any intermediary or 

vendor company. In general, the master 

services agreement (also commonly 

called a supplier agreement) sets out the 

essential contractual terms and provides 

the basic framework for the overall 

relationship between the parties.108 The 

statement of work (also commonly 

called a work order) provides more 

specific information, such as the scope 

of services to be performed, details 

about the services, and the allocation of 

responsibilities among the parties.109

The petitioner may also submit letters 

signed by an authorized official of the 

end-client company for which the 

beneficiary will work and any 

intermediary or vendor company. 

Other types of documentation 

petitioners may provide include 

technical documentation, milestone 

tables, marketing analyses, cost-benefit 

analyses, brochures, and funding 

documents. Overall, these documents 

should be detailed enough to provide a 

sufficiently comprehensive view of the 

position being offered to the beneficiary 

and the terms and conditions under 

which the work would be performed. 

The documentation should also include 

the minimum educational requirements 

to perform the duties. Documentation 

that merely sets forth the general 

obligations of the parties to the 

agreement, or that does not provide 

specific information pertaining to the 

actual work to be performed, would 

generally be insufficient.110

Through proposed 8 CFR 

214.2(h)(4)(iv)(C), DHS seeks to put 

stakeholders on notice of the kinds of 

evidence that could be requested to 

establish the terms and conditions of the 

beneficiary’s work and the minimum 

educational requirements to perform the 

duties. This evidence, in turn, could 

establish that the petitioner has a bona 

fide job offer for a specialty occupation 

position for the beneficiary. DHS is 

proposing conforming changes to the 

introductory paragraph (h)(4)(iv) to 

distinguish the types of evidence that 

are required as initial evidence 

addressed in paragraphs (h)(4)(iv)(A) 

and (B), from the evidence USCIS may 

request under new paragraph 

(h)(4)(iv)(C). 

b. Non-Speculative Employment 

DHS proposes to codify its 

requirement that the petitioner must 

establish, at the time of filing, that it has 

a non-speculative position in a specialty 

occupation available for the beneficiary 

as of the start date of the validity period 

as requested on the petition. See 

proposed 8 CFR 214.2(h)(4)(iii)(F). This 

change is consistent with current DHS 

policy guidance that an H–1B petitioner 

must establish that employment exists 

at the time of filing the petition and that 

it will employ the beneficiary in a 

specialty occupation.111

The requirement of non-speculative 

employment derives from the statutory 

definition of an H–1B nonimmigrant 

worker as someone who is ‘‘coming 

temporarily to the United States to 

perform services . . . in a specialty 

occupation . . . .’’ See INA section 

101(a)(15)(H)(i)(b), 8 U.S.C. 

1101(a)(15)(H)(i)(b). To determine 

whether the H–1B worker will perform 

services in a specialty occupation as 

required, USCIS must examine the 

nature of the services the beneficiary 

will perform in the offered position. 

Where the proposed position is 

speculative, meaning that it is 

undetermined, then the petitioner will 

not be able to establish the nature of the 

offered position. Speculative 

employment precludes the agency from 

ascertaining whether those duties 

normally require the attainment of a 

U.S. bachelor’s or higher degree in a 

directly related specific specialty to 

qualify the position as a specialty 

occupation, and whether the beneficiary 

has the appropriate qualifications to 

perform those duties. Speculative 

employment undermines the integrity 

and a key goal of the H–1B program, 

which is to help U.S. employers obtain 

the skilled workers they need to 

conduct their business, subject to 

annual numerical limitations, while 

protecting the wages and working 

conditions of U.S. workers. DHS 

believes that expressly prohibiting 

speculative employment, consistent 

with current practice, would align with 

Congressional intent and would prevent 

possible misunderstanding of the 

specialty occupation eligibility 

requirement. 

The agency has long held and 

communicated the view that speculative 

employment is not permitted in the H– 

1B program. For example, a 1998 

proposed rule documented this 

position, stating that, historically, 

USCIS (or the Service, as it was called 

at the time) has not granted H–1B 

classification on the basis of 

speculative, or undetermined, 

prospective employment.112 That 

proposed rule explained that the H–1B 

classification was not intended as a 

vehicle for a person to engage in a job 

search within the United States, or for 


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113See id. at 30420. 

114See id. See also Government Accountability 

Office, ‘‘H–1B Foreign Workers: Better Controls 

Needed to Help Employers and Protect Workers,’’ 

GAO/HEHS–00–157 (Sept. 2000), https://

www.gao.gov/assets/hehs-00-157.pdf (‘‘The petition 

is required to contain the necessary information to 

show that a bona fide job exists . . . .’’); Serenity 

Info Tech, Inc. v. Cuccinelli, 461 F. Supp. 3d 1271, 

1286 (N.D. Ga. 2020) (‘‘Demonstrating that the 

purported employment is actually likely to exist for 

the beneficiary is a basic application requirement 

. . . .’’). 

115See ITServe Alliance, Inc. v. Cissna, 443 F. 

Supp. 3d 14, 39 (D.D.C. 2020) (the U.S. District 

Court for the District of Columbia, in considering 

a requirement that an H–1B petitioner establish 

non-speculative assignments for the entire time 

requested in a petition, explained that ‘‘very few, 

if any, U.S. employer would be able to identify and 

prove daily assignments for the future three years 

for professionals in specialty occupations’’ and that 

‘‘[n]othing in [the statutory definition of ‘specialty 

occupation’] requires specific and non-speculative 

qualifying day-to-day assignments for the entire 

time requested in the petition’’); Serenity Info Tech, 

461 F. Supp. 3d at 1286 (agreeing with the 

determination by the court in ITServe Alliance that 

the statute does not require specific and nonspeculative qualifying day-to-day assignments). 

116USCIS, ‘‘Rescission of Policy Memoranda,’’ 

PM–602–0114 at 3 (June 17, 2020) (stating that ‘‘a 

petitioner is not required to identify and document 

the beneficiary’s specific day-to-day assignments’’). 

117See 20 CFR 655.705(b). 

118See INA section 212(n)(1); 8 CFR 

214.2(h)(1)(ii)(B)(1); (h)(4)(i)(B)(1) and (2); 

(h)(4)(iii)(B). 

119SOC refers to the Standard Occupational 

Classification code system, a classification system 

used by the DOL and other Federal agencies to 

categorize occupations. See BLS, ‘‘Standard 

Occupational Classification,’’ https://www.bls.gov/ 

soc/ (last visited Oct. 26, 2022); OMB, ‘‘Statistical 

Programs & Standards,’’ https://

www.whitehouse.gov/omb/information-regulatoryaffairs/statistical-programs-standards/ (last visited 

Oct. 26, 2022). 

120See 20 CFR 655.730–655.731. 

121See id. 

122There are four Federal agencies involved in 

the process relating to H–1B nonimmigrant 

classification and employment: DOL, DOS, U.S. 

Department of Justice, and DHS. In general, DOL 

administers the LCA process and LCA enforcement 

provisions. As noted, DHS determines, among other 

things, whether the petition is properly supported 

by an LCA that corresponds with the petition, 

whether the occupation named in the LCA is a 

specialty occupation, and whether the 

qualifications of the nonimmigrant meets the 

statutory and regulatory requirements for H–1B visa 

classification. Department of Justice administers the 

enforcement and disposition of complaints 

regarding an H–1B–dependent or willful violator 

employer’s failure to offer an H–1B position to an 

equally or better qualified U.S. worker, or such 

employer’s willful misrepresentation of material 

facts relating to this obligation. DOS, through U.S. 

Embassies and consulates, is responsible for issuing 

H–1B visas. See 20 CFR 655.705. 

123See, e.g., 8 U.S.C. 1184(c)(1) (stating ‘‘[t]he 

question of importing any alien as a nonimmigrant 

under subparagraph (H) . . . in any specific case or 

specific cases shall be determined by the [Secretary 

of Homeland Security]’’). 

124See Matter of Simeio Solutions, LLC, 26 I&N 

Dec. 542, 546 n.6 (AAO 2015) (‘‘USCIS must 

determine whether the attestations and content of 

an LCA correspond to and support the H–1B visa 

petition’’). 

employers to bring in temporary foreign 

workers to meet possible workforce 

needs arising from potential business 

expansions or the expectation of 

potential new customers or contracts.113

If the employment is speculative, USCIS 

is unable to properly analyze the 

intended employment and determine 

whether the position is a specialty 

occupation.114

Note, however, that establishing nonspeculative employment does not mean 

demonstrating non-speculative daily 

work assignments through the duration 

of the requested validity period. DHS 

does not propose to require employers 

to establish non-speculative and specific 

assignments for every day of the 

intended period of employment.115

Again, under proposed 8 CFR 

214.2(h)(4)(iii)(F), a petitioner must 

demonstrate, at the time of filing, 

availability of non-speculative 

employment as of the requested start 

date. However, DHS does not require a 

petitioner to identify and document the 

beneficiary’s specific day-to-day 

assignments.116 DHS also does not 

intend to limit validity periods based on 

the end-date of contracts, work orders, 

itineraries, or similar documentation. 

Speculative employment should not be 

confused with employment that is 

contingent on petition approval, visa 

issuance (when applicable), or the grant 

of H–1B status. DHS recognizes that 

employment may be actual, but 

contingent on petition approval, visa 

issuance, or the beneficiary being 

granted H–1B status. 

c. LCA Corresponds With the Petition 

DHS is proposing to update the 

regulations to expressly include DHS’s 

existing authority to ensure that the 

LCA properly supports and corresponds 

with the accompanying H–1B petition. 

The proposed text at 8 CFR 

214.2(h)(4)(i)(B)(1)(ii) would align DHS 

regulations with existing DOL 

regulations, which state that DHS has 

the authority to determine whether the 

LCA supports and corresponds with the 

H–1B petition. See 20 CFR 655.705(b). 

It would also codify DHS’s authority to 

determine whether all other eligibility 

requirements have been met, such as 

whether the beneficiary for whom H–1B 

classification is sought qualifies to 

perform services in the specialty 

occupation as prescribed in INA section 

214(i)(2), 8 U.S.C. 1184(i)(2). While DHS 

already has the authority under INA 

sections 101(a)(15)(H)(i)(b), 103(a), and 

214(a)(1) and (c)(1), 8 U.S.C. 

1101(a)(15)(H)(i)(b), 1103(a), and 

1184(a)(1) and (c)(1), to determine 

whether the LCA supports and 

corresponds with the H–1B petition, 

this authority currently is only stated in 

DOL’s regulations and not in DHS’s 

regulations.117 By adding it to DHS 

regulations, DHS would align its 

regulations with existing DOL 

regulations, which would add clarity 

and provide transparency to 

stakeholders. 

The current statute and regulations 

require that a petitioner file an LCA 

certified by the Secretary of Labor with 

its H–1B petition, unless filing for 

certain Department of Defense 

workers.118 Among other information, 

the employer must provide the 

prevailing wage rate, occupational 

classification (‘‘Standard Occupational 

Classification (SOC) occupational 

title’’),119 and place of employment for 

the offered position on the LCA. The 

employer must attest on the LCA that it 

will pay the beneficiary the higher of 

the prevailing wage for the occupational 

classification in the area of employment 

or the employer’s actual wage.120 It 

must also attest to the truthfulness and 

accuracy of the information provided on 

the LCA.121

DHS proposes to amend existing 

regulations to state clearly that, 

although the Secretary of Labor certifies 

the LCA, DHS has the authority and 

obligation to determine whether the 

certified LCA properly supports and 

corresponds with the H–1B petition.122

DHS also proposes to amend the 

regulations to clarify its existing 

authority and obligation to determine 

whether all eligibility requirements for 

H–1B classification have been met.123

This proposed regulation would more 

clearly summarize DHS’s existing 

authority under INA section 

101(a)(15)(H)(i)(b), 103(a), and 214(a)(1) 

and (c)(1), 8 U.S.C. 1101(a)(15)(H)(i)(b), 

1103(a), and 1184(a)(1) and (c)(1). This 

authority is also referenced, in part, in 

DOL’s regulation at 20 CFR 655.705(b), 

which states in pertinent part that DHS 

accepts an employer’s H–1B petition 

with the DOL-certified LCA attached, 

and in doing so, ‘‘DHS determines 

whether the petition is supported by an 

LCA which corresponds with the 

petition’’ and otherwise meets the 

statutory requirements for the 

classification.124 Thus, DHS’s proposed 

regulation would mirror DOL 

regulations and expressly clarify DHS’s 

existing authority with respect to 

reviewing the certified LCA within the 

context of adjudicating the H–1B 

petition. 

When determining whether the 

submitted certified LCA properly 


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125See 8 CFR 103.2(b)(1) (an applicant or 

petitioner must establish eligibility at the time of 

filing); 8 CFR 214.2(h)(2)(i)(E) (petitioner must file 

a new or amended petition with USCIS to reflect 

any material change in the terms and conditions of 

employment or the foreign citizen’s eligibility for 

H–1B status); Matter of Simeio Solutions, LLC, 26 

I&N Dec. 542, 547 (AAO 2015) (‘‘When there is a 

material change in the terms and conditions of 

employment, the petitioner must file an amended 

or new H–1B petition with the corresponding LCA. 

8 CFR 214.2(h)(2)(i)(E).’’). See also Matter of 

Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm’r 

1998) (a petitioner may not make material changes 

to a petition in an effort to make a deficient petition 

conform to USCIS requirements). 

126See 8 CFR 103.2(b)(1) (any evidence submitted 

in connection with a benefit request is incorporated 

into and considered part of the request); USCIS, 

‘‘Rescission of Policy Memoranda,’’ PM–602–0114, 

at 2 (June 17, 2020) (‘‘The petitioner is required to 

attest under penalty of perjury on the H–1B petition 

and LCA that all of the information contained in the 

petition and supporting documents is complete, 

true, and correct.’’), https://www.uscis.gov/sites/ 

default/files/document/memos/PM-602-0114_

ITServeMemo.pdf; Matter of Simeio Solutions, 26 

I&N Dec. 542, 546 n.6 (AAO 2015) (‘‘USCIS must 

determine whether the attestations and content of 

an LCA correspond to and support the H–1B visa 

petition, including the specific place of 

employment. 20 CFR 655.705(b) (2014); see also 8 

CFR 214.2(h)(4)(i)(B).’’). 

127See, e.g., ‘‘Identifying Barriers Across U.S. 

Citizenship and Immigration Services (USCIS) 

Benefits and Services; Request for Public Input,’’ 86 

FR 20398 (Apr. 19, 2021). 

128See ITServe Alliance, Inc. v. Cissna, 443 

F.Supp.3d 14, 19 (D.D.C. 2020) (finding that the 

USCIS policy interpreting the existing regulation to 

require a common-law employer-employee 

relationship violated the Administrative Procedure 

Act as applied and that the itinerary requirement at 

8 CFR 214.2(h)(2)(i)(B) is ultra vires as it pertains 

to H–1B petitions). 

129See USCIS, ‘‘Rescission of Policy 

Memoranda,’’ PM–602–0114 (June 17, 2020), 

https://www.uscis.gov/sites/default/files/document/ 

memos/PM-602-0114_ITServeMemo.pdf. This 

memorandum rescinded the USCIS policy 

memorandum ‘‘Determining Employer-Employee 

Relationship for Adjudication of H–1B Petitions, 

Including Third-Party Site Placements,’’ HQ 70/ 

6.2.8 (AD 10–24) (Jan. 8, 2010). 

corresponds with the petition, 

consistent with current practice, USCIS 

would consider all the information on 

the LCA, including, but not limited to, 

the standard occupational classification 

(SOC) code, wage level (or an 

independent authoritative source 

equivalent), and location(s) of 

employment. USCIS would evaluate 

whether that information sufficiently 

aligns with the offered position, as 

described in the rest of the record of 

proceeding. In other words, USCIS 

would compare the information 

contained in the LCA against the 

information contained in the petition 

and supporting evidence. USCIS would 

not, however, supplant DOL’s 

responsibility with respect to wage 

determinations. The wage level is not 

solely determinative of whether the 

position is a specialty occupation. 

DHS notes that the LCA, H–1B 

petition, and supporting documentation 

must be for the same position; however, 

the same position does not necessarily 

mean that all information describing the 

position must be identical. A petitioner 

may legitimately supplement or clarify 

the record with additional information 

about the offered position in response to 

an RFE, on motion, or on appeal. So 

long as the supplemental information 

does not materially change the position 

described in the original H–1B petition, 

DHS would consider the position to be 

the same. DHS would view a change to 

be material for these purposes if the 

change would have required the 

petitioner to file an amended or new 

petition with the corresponding LCA or 

if the change was made to make the 

position description comport with an 

originally submitted LCA.125

Additionally, DHS proposes to 

improve 8 CFR 214.2(h)(4)(i)(B), by 

redesignating existing paragraphs 

(h)(4)(i)(B)(1) through (6) as proposed 

paragraphs (h)(4)(i)(B)(1)(i) through (vi) 

and adding a new heading to clarify that 

these provisions all relate to LCA 

requirements. DHS is also proposing 

technical changes throughout this 

section, such as replacing ‘‘shall’’ with 

‘‘must,’’ ‘‘application’’ with ‘‘certified 

labor condition application,’’ and ‘‘the 

Service’’ with ‘‘USCIS,’’ for additional 

clarity. 

In separate provisions that are also 

related to the LCA, DHS proposes to 

revise the grounds for denial or 

revocation related to the statements of 

facts contained in the petition, TLC, or 

the LCA. See proposed 8 CFR 

214.2(h)(10)(ii) and (h)(11)(iii)(A)(2). 

This would codify DHS’s current 

practices, as the LCA is incorporated 

into and considered part of the H–1B 

petition, just like the TLC is 

incorporated into and considered part of 

the H–2A or H–2B petition.126

While current 8 CFR 

214.2(h)(11)(iii)(A)(2) already refers to 

the ‘‘temporary labor certification,’’ it 

does not expressly refer to the ‘‘labor 

condition application.’’ DHS proposes 

to add an express reference to the LCA 

in proposed 8 CFR 

214.2(h)(11)(iii)(A)(2) to resolve any 

doubts that a false statement on the 

LCA—just like a false statement on the 

TLC—could provide a basis for USCIS 

to revoke an H petition approval. The 

purpose of the proposed change to 8 

CFR 214.2(h)(10)(ii) is to clarify and 

better align with the language in 

proposed 8 CFR 214.2(h)(11)(iii)(A)(2) to 

expressly reference inaccurate or false 

statements on the petition, TLC, or LCA, 

as applicable, as a basis for denial of an 

H petition. 

d. Revising the Definition of U.S. 

Employer 

DHS is proposing to revise the 

definition of ‘‘United States employer.’’ 

Currently, 8 CFR 214.2(h)(4)(ii) defines 

the term ‘‘United States employer’’ as a 

person, firm, corporation, contractor, or 

other association, or organization in the 

United States that: (1) Engages a person 

to work within the United States; (2) has 

an employer-employee relationship 

with respect to employees under 8 CFR 

part 214, as indicated by the fact that it 

may hire, pay, fire, supervise, or 

otherwise control the work of any such 

employee; and (3) has an Internal 

Revenue Service Tax identification 

number. 

DHS proposes several changes to the 

‘‘United States employer’’ definition at 

8 CFR 214.2(h)(4)(ii) to bring it in line 

with our current practice. First, in place 

of the employer-employee relationship 

requirement, DHS proposes to codify 

the existing requirement that the 

petitioner has a bona fide job offer for 

the beneficiary to work within the 

United States. DHS also proposes to 

replace the requirement that the 

petitioner ‘‘[e]ngages a person to work 

within the United States’’ with the 

requirement that the petitioner have a 

legal presence and is amenable to 

service of process in the United States. 

DHS is not proposing to change the 

current requirement at 8 CFR 

214.2(h)(4)(ii) that the petitioner must 

have an IRS Tax identification number. 

e. Employer-Employee Relationship 

DHS proposes to remove from the 

definition of U.S. employer the 

reference to an employer-employee 

relationship, which, in the past, was 

interpreted using common law 

principles and was a significant barrier 

to the H–1B program for certain 

petitioners, including beneficiaryowned petitioners. This proposed 

change is consistent with current USCIS 

policy guidance, and removing the 

employer-employee relationship 

language from the regulations would 

promote clarity and transparency in the 

regulations. It would also support DHS’s 

overall commitment to reducing 

administrative barriers, including those 

that unnecessarily impede access to 

USCIS immigration benefits.127 This 

proposed change reflects USCIS’s 

current practices since June 2020, when, 

following a court order and settlement 

agreement,128 USCIS formally rescinded 

its January 2010 policy guidance on the 

employer-employee relationship 

analysis under common law.129 As 


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130 Id. at 2. 

131Consistent with existing practice, the phrase 

‘‘within the United States’’ does not and would not 

prohibit H–1B nonimmigrants from travelling 

internationally. 

132See USCIS, ‘‘Rescission of Policy 

Memoranda,’’ PM–602–0114 (June 17, 2020); see 

also USCIS, Adjudicator’s Field Manual (AFM) 

Chapter 31.3(g)(4) at 24, ‘‘H1–B Classification and 

Documentary Requirements has been partially 

superseded as of June 17, 2020,’’ available at 

https://www.uscis.gov/sites/default/files/document/ 

policy-manual-afm/afm31-external.pdf (last visited 

Sept. 5, 2023) (‘‘The burden of proof falls on the 

petitioner to demonstrate the need for such an 

employee. Unless you are satisfied that a legitimate 

need exists, such a petition may be denied because 

the petitioner has failed to demonstrate that the 

beneficiary will be employed in a qualifying 

specialty occupation.’’). While USCIS retired the 

AFM in May 2020, this example nevertheless 

illustrates the agency’s historical interpretation. 

133See, e.g., Kim Parker, Juliana Menasce 

Horowitz, and Rachel Minkin, ‘‘COVID–19 

Pandemic Continues to Reshape Work in America’’ 

(Feb. 16, 2022), https://www.pewresearch.org/ 

social-trends/2022/02/16/covid-19-pandemiccontinues-to-reshape-work-in-america/ (among 

those who have a workplace outside of their home, 

in January 2022, 61 percent said they choose not 

to go into their workplace, compared to only 31 

percent of this population surveyed in October 

2020); Greg Iacurci, ‘‘Why Labor Economists Say 

the Remote Work ‘Revolution’ is Here to Stay’’ (Dec. 

1, 2022), https://www.cnbc.com/2022/12/01/whylabor-economists-say-the-remote-work-revolutionis-here-to-stay.html (the share of remote workers 

had been doubling every 15 years prior to 2020, but 

the subsequent increase during the pandemic 

amounted to 30 years of pre-pandemic growth). 

explained in USCIS’s June 2020 policy 

memorandum ‘‘Rescission of Policy 

Memoranda,’’ when assessing whether 

an employer and a beneficiary have an 

employer-employee relationship under 

current 8 CFR 214.2(h)(4)(ii), the 

petitioner need only establish that it 

meets at least one of the ‘‘hire, pay, fire, 

supervise, or otherwise control the work 

of’’ factors with respect to the 

beneficiary.130 H–1B petitioners are 

required to submit an LCA attesting that 

they will pay the beneficiary, see, e.g., 

8 CFR 214.2(h)(4)(i)(B), as well as a copy 

of any written contracts between the 

petitioner and the beneficiary (or a 

summary of the terms of the oral 

agreement under which the beneficiary 

will be employed, if a written contract 

does not exist), which typically 

demonstrates that they will hire and pay 

the beneficiary, see 8 CFR 

214.2(h)(4)(iv). Therefore, H–1B 

petitioners generally will meet the 

employer-employee relationship under 

current 8 CFR 214.2(h)(4)(ii) simply by 

submitting the required LCA and 

employment agreement as part of the 

initial evidence for Form I–129. As a 

result, the current employer-employee 

relationship requirement has limited 

practical value and could be a potential 

source of confusion if maintained in the 

regulations. As an additional integrity 

measure, and as explained in more 

detail below, DHS is proposing to codify 

the existing requirement that the 

petitioner have a bona fide job offer for 

the beneficiary to work within the 

United States. 

As indicated above, the previous 

analysis created significant barriers to 

the H–1B program for certain 

petitioners, including beneficiaryowned petitioners. For example, a 

beneficiary-owner may have been 

unlikely to establish a common-law 

employer-employee relationship with 

the petitioning entity, even if working 

for the petitioning entity in a specialty 

occupation and as a W–2 employee, and 

thus denied classification as an H–1B 

specialty occupation worker. 

Furthermore, USCIS’s previous policy 

was not entirely consistent with DOL’s 

regulatory definition of an H–1B 

employer. DOL’s definition of 

‘‘employer’’ at 20 CFR 655.715 states, in 

pertinent part, ‘‘In the case of an H–1B 

nonimmigrant (not including E–3 and 

H–1B1 nonimmigrants), the person, 

firm, contractor, or other association or 

organization in the United States that 

files a petition with [USCIS] on behalf 

of the nonimmigrant is deemed to be the 

employer of that nonimmigrant.’’ The 

definition further states, ‘‘In the case of 

an E–3 and H–1B1 nonimmigrant, the 

person, firm, contractor, or other 

association or organization in the 

United States that files an LCA with 

[DOL] on behalf of the nonimmigrant is 

deemed to be the employer of that 

nonimmigrant.’’ As a result of USCIS’s 

2010 policy guidance, it was often the 

case that USCIS concluded a petitioner 

was not an employer for purposes of the 

H–1B petition even though DOL deemed 

that same petitioner to be an employer 

for purposes of the LCA. This disparity 

increased the potential for confusion 

among H–1B stakeholders. It is in DHS’s 

interests to promote, to the extent 

possible, a more consistent framework 

among DHS and DOL regulations for H– 

1B, E–3, and H–1B1 petitions and to 

increase clarity for stakeholders. 

However, the proposed removal of the 

employer-employee requirement from 8 

CFR 214.2(h)(4)(ii) is not intended to 

narrow in any way the scope of 

petitioners against whom DOL may 

enforce the H–1B labor requirements. 

f. Bona Fide Job Offer 

Under the second prong of the 

definition of ‘‘U.S. employer’’ at 8 CFR 

214.2(h)(4)(ii), DHS proposes to codify 

the existing requirement that the 

petitioner have a bona fide job offer for 

the beneficiary to work within the 

United States.131 While this requirement 

is not currently expressly stated in the 

regulations, it is reflected in current 

USCIS policy guidance, which states 

that the petitioner must establish that 

‘‘[a] bona fide job offer . . . exist[s] at 

the time of filing.’’ 132

This proposed change would also be 

consistent with the current H–1B 

Registration Tool, where the petitioner 

must attest at the time of registration 

that each registration for an H–1B capsubject beneficiary reflects a legitimate 

job offer. DHS’s proposal to codify the 

requirement for a bona fide job offer 

requirement would complement DHS’s 

proposal to codify the requirement to 

demonstrate a non-speculative position 

in a specialty occupation for the 

beneficiary at proposed 8 CFR 

214.2(h)(4)(iii)(F). 

DHS proposes to codify the bona fide 

job offer requirement in place of the 

current requirement that the petitioner 

‘‘[e]ngages a person to work within the 

United States’’ under the first prong of 

current 8 CFR 214.2(h)(4)(ii). As 

currently written, the requirement for a 

petitioner to ‘‘engage[ ] a person to work 

within the United States’’ has limited 

practical value because it does not 

specify that the petitioner should engage 

the beneficiary (rather than ‘‘a person’’) 

and it does not specify that the work to 

be performed must be within the United 

States. 

Furthermore, DHS proposes to add 

clarification that the bona fide job offer 

may include ‘‘telework, remote work, or 

other off-site work within the United 

States.’’ See proposed 8 CFR 

214.2(h)(4)(ii). While USCIS currently 

allows these types of work arrangements 

(provided they are consistent with the 

certified LCA and other regulatory 

requirements), the regulations do not 

state this expressly. DHS believes this 

clarification is helpful as more 

businesses allow and more workers 

choose telework, remote work, or other 

types of work arrangements.133 DHS 

emphasizes that nothing in the 

proposed rule would change the 

Department of Labor’s administration 

and enforcement of statutory and 

regulatory requirements related to labor 

condition applications. See 8 U.S.C. 

1182(n); 20 CFR part 655 Subparts H 

and I. These requirements would be 

unaffected by this proposed rule and 

would continue to apply to all H–1B 

employers. 

g. Legal Presence and Amenable to 

Service of Process 

In the second prong of the definition 

of U.S. employer at 8 CFR 

214.2(h)(4)(iv)(D), DHS proposes to add 

a new requirement that the petitioner 

has a legal presence in the United States 


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134See, e.g., In Re. 9019481, 2020 WL 9668720 

(AAO July 17, 2020) (‘‘[T]he record of proceeding 

does not contain evidence demonstrating the 

Petitioner is active and in good standing with any 

State. If a petitioner is no longer in business, then 

no bona fide job offer exists to support the 

petition.’’); In Re. 16130730, 2021 WL 2806409 

(AAO Apr. 27, 2021) (‘‘[T]he petitioner has not 

demonstrated that it is an entity in active and good 

standing. . . . If the petitioner is not actually in 

business, it cannot qualify as an entity with 

standing to file an H–1B petition.’’). 

135See USCIS, ‘‘Determining Employer-Employee 

Relationship for Adjudication of H–1B Petitions, 

Including Third-Party Site Placements,’’ HQ 70– 

6.2.8, AD 10–24 (Jan. 8, 2010). 

136Again, DHS emphasizes that nothing in the 

proposed rule would change the Department of 

Labor’s administration and enforcement of statutory 

and regulatory requirements related to labor 

condition applications. See 8 U.S.C. 1182(n); 20 

CFR part 655, subparts H and I. These requirements 

would be unaffected by this proposed rule and 

would continue to apply to all H–1B employers. 

137See The CHIPS and Science Act of 2022, 

Public Law 117–167 (Aug. 22, 2022). 

138See, e.g., National Bureau of Economic 

Research, ‘‘Winning the H–1B Visa Lottery Boosts 

the Fortunes of Startups’’ (Jan. 2020), https://

www.nber.org/digest/jan20/winning-h-1b-visalottery-boosts-fortunes-startups (‘‘The opportunity 

to hire specialized foreign workers gives startups a 

leg up over their competitors who do not obtain 

visas for desired employees. High-skilled foreign 

labor boosts a firm’s chance of obtaining venture 

capital funding, of successfully going public or 

being acquired, and of making innovative 

breakthroughs.’’); Pierre Azoulay, et al., 

‘‘Immigration and Entrepreneurship in the United 

States’’ (National Bureau of Economic Research, 

Working Paper 27778 (Sept. 2020), https://

www.nber.org/system/files/working_papers/ 

w27778/w27778.pdf (‘‘immigrants act more as ‘job 

creators’ than ‘job takers’ and . . . non-U.S. born 

founders play outsized roles in U.S. high-growth 

entrepreneurship’’). 

and is amenable to service of process in 

the United States. Legal presence, in 

this context, means that the petitioner is 

legally formed and authorized to 

conduct business in the United States. 

In order to employ an individual 

legitimately in a specialty occupation, 

an employer should be able to conduct 

business legally in the United States.134

If USCIS discovers at any time while the 

petition is pending that the petitioner 

does not have a legal presence in the 

United States, it may issue a request for 

additional evidence and provide the 

petitioner the opportunity to cure that 

deficiency. 

‘‘Amenable to service of process’’ 

means that the petitioner may be sued 

in a court in the United States. Since the 

petitioner undertakes legal obligations 

to employ the beneficiary according to 

the terms and conditions on the petition 

and LCA, the petitioner should not be 

able to avoid liability for not complying 

with these obligations by later claiming 

that it is not the employer or is not 

amenable to service of process. The 

requirement that the petitioner is 

amenable to service of process in the 

United States is also found in other 

classifications, such as H–2B, O–1, and 

P–1. Those regulations state that ‘‘a 

foreign employer is any employer who 

is not amenable to service of process in 

the United States.’’ See 8 CFR 

214.2(h)(6)(iii)(B); (o)(2)(i); and (p)(2)(i), 

respectively. 

7. Beneficiary-Owners 

In the fourth prong of the definition 

of U.S. employer at 8 CFR 

214.2(h)(4)(ii), DHS proposes to codify a 

petitioner’s ability to qualify as a U.S. 

employer even when the beneficiary 

possesses a controlling interest in that 

petitioner. As discussed above, 

historically, USCIS’s common law 

analysis of the employer-employee 

relationship has been an impediment for 

certain beneficiary-owned businesses to 

use the H–1B program. While USCIS has 

not applied the common law analysis of 

the employer-employee relationship 

since June 2020, when it rescinded its 

2010 policy memorandum,135 DHS 

believes that prospective beneficiaryowned businesses may still be reluctant 

to participate in the H–1B program due 

to the legacy of its now-rescinded 

memorandum. Through this proposed 

change to 8 CFR 214.2(h)(4)(ii), DHS 

seeks to clarify its current policy and 

encourage more beneficiary-owned 

businesses to participate in the H–1B 

program.136

The United States has long been a 

destination for top talent from all over 

the world, including for entrepreneurs 

and innovators. The United States 

continues to build and expand 

initiatives to support its evolving 

workforce with policies such as the 

passage of the CHIPS and Science Act 

of 2022, which will foster innovation in 

many ways, including by reducing the 

barriers of entry to startups.137 While 

the United States prides itself on its 

ability to attract global talent, there are 

limited pathways for entrepreneurs to 

come to the United States under existing 

regulations. To promote access to H–1Bs 

for entrepreneurs, start-up entities, and 

other beneficiary-owned businesses, 

DHS is proposing to add provisions to 

specifically address situations where a 

potential H–1B beneficiary owns a 

controlling interest in the petitioning 

entity. If more entrepreneurs are able to 

obtain H–1B status to develop their 

business enterprises, the United States 

could benefit from the creation of jobs, 

new industries, and new 

opportunities.138 At the same time, DHS 

seeks to set reasonable conditions for 

when the beneficiary owns a controlling 

interest in the petitioning entity to 

better ensure program integrity. These 

proposed conditions would apply when 

a beneficiary owns a controlling 

interest, meaning that the beneficiary 

owns more than 50 percent of the 

petitioner or when the beneficiary has 

majority voting rights in the petitioner. 

These proposed conditions would not 

apply when a beneficiary does not own 

a controlling interest in the petitioning 

entity. DHS believes it is reasonable to 

limit the application of these conditions 

to H–1B petitioners where the 

beneficiary has a controlling interest to 

ensure that the beneficiary will be 

employed in a specialty occupation in a 

bona fide job opportunity. 

One of the proposed conditions is that 

the beneficiary may perform duties that 

are directly related to owning and 

directing the petitioner’s business as 

long as the beneficiary will perform 

specialty occupation duties authorized 

under the petition a majority of the 

time. See proposed 8 CFR 

214.2(h)(4)(ii). ‘‘A majority of the time’’ 

in this context means that the 

beneficiary must perform specialty 

occupation duties more than 50 percent 

of the time. 

By requiring that the beneficiary 

perform specialty occupation duties a 

majority of the time, the beneficiaryowner would have flexibility to perform 

non-specialty occupation duties that are 

directly related to owning and directing 

the petitioner’s business. This proposed 

rule would not preclude the beneficiary 

from being authorized for concurrent 

employment with two or more entities 

(including another entity where the 

beneficiary is also an owner with a 

controlling interest) so long as each 

entity has been approved to employ the 

beneficiary in a specialty occupation 

and the individual otherwise satisfies 

all eligibility requirements. In this 

concurrent employment scenario, where 

a beneficiary seeks concurrent 

employment with more than one entity 

and the beneficiary owns a controlling 

interest in each of the petitioners filing 

to authorize concurrent employment, 

the ‘‘majority of the time’’ standard 

must be met with respect to each 

petition, and the beneficiary must 

comply with the terms and conditions 

of each petition. 

The proposed language at 8 CFR 

214.2(h)(4)(ii) would state that a 

beneficiary may perform non-specialty 

occupation duties as long as such nonspecialty occupation duties are directly 

related to owning and directing the 

petitioner’s business. Additionally and 

similar to other H–1B petitions, a 

beneficiary-owner may perform some 

incidental duties, such as making copies 

or answering the telephone. DHS 

expects a beneficiary-owner would need 

to perform some non-specialty 


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139See GCCG Inc v. Holder, 999 F. Supp. 2d 1161, 

1167 (N.D. Cal. 2013) (agreeing with Defendant that 

for USCIS to find the petitioner’s proffered job to 

be a specialty occupation, the majority of the 

beneficiary’s time must be spent performing the 

duties of the specialty occupation). 

140See, e.g., GCCG Inc v. Holder, 999 F. Supp. 2d 

1161, 1165–68 (N.D. Cal. 2013) (finding the 

beneficiary to be mainly performing non-specialty 

occupation duties and explaining that USCIS 

requires the beneficiary’s duties to entail mainly the 

performance of specialty occupation duties for the 

position to qualify as a specialty occupation); 

Engaged in Life, LLC v. Johnson, No. 14–06112–CV– 

DW, 2015 WL 11111211, at *4 (W.D. Mo. Oct. 13, 

2015) (citing GCCG Inc.). 

141See, e.g., In Re. 8423340, 2020 WL 9668851, 

at *12 (AAO July 27, 2020) (‘‘[W]e will permit the 

performance of duties that are incidental to the 

primary duties of the proffered position as 

acceptable when they occur by chance, are 

intermittent, and are of a minor consequence. 

Anything beyond such incidental duties (e.g., 

predictable, recurring, and substantive job 

responsibilities), must be specialty occupation 

duties or the proffered position as a whole cannot 

be approved as a specialty occupation.’’); In Re. M– 

C-, 2016 WL 8316337, at *4 (AAO Dec. 23, 2016) 

(‘‘[A]nything beyond incidental duties, that is 

predictable, recurring, and substantive job 

responsibilities, must be specialty occupation 

duties or the proffered position as a whole cannot 

be approved as a specialty occupation.’’); In Re. 

1280169, 2018 WL 2112902 (AAO Apr. 20, 2018) 

(concluding that the beneficiary’s position, on the 

whole, will include non-qualifying duties 

inconsistent with those of a specialty-occupation 

caliber position because the non-qualifying duties 

have not been shown to be incidental to the 

performance of the primary duties of the proffered 

position). 

142See 8 U.S.C. 1182(n); 20 CFR part 655, 

subparts H and I. 

143 DOL, ‘‘Round 3: Implementation of the 

Revised Form ETA–9141 FAQs’’ at 1 (July 16, 

2021), https://www.dol.gov/sites/dolgov/files/ETA/ 

oflc/pdfs/NPWC%20Round%203

%20Frequently%20Asked%20Questions%20- 

%20Implementation%20of%20Revised%20Form

%20ETA-9141.pdf (When there is a combination of 

occupations, the SOC code with the highest wage 

is assigned.); DOL, ‘‘Prevailing Wage Determination 

Policy Guidance Nonagricultural Immigration 

Programs Revised November 2009’’ at 4, https://

www.flcdatacenter.com/download/npwhc_

guidance_revised_11_2009.pdf (last visited Oct. 3, 

2023) (If the employer’s job opportunity involves a 

combination of occupations, the National Prevailing 

Wage Center should list the relevant occupational 

code for the highest paying occupation.). 

occupation duties when growing a new 

business or managing the business. 

Notwithstanding incidental duties, nonspecialty occupation duties must be 

directly related to owning and directing 

the business. These duties may include, 

but are not limited to: signing leases, 

finding investors, and negotiating 

contracts. The goal is to ensure that a 

beneficiary who is the majority or sole 

owner and employee of a company 

would not be disqualified by virtue of 

having to perform duties directly related 

to owning and directing their own 

company, while also ensuring that the 

beneficiary would still be ‘‘coming 

temporarily to the United States to 

perform services . . . in a specialty 

occupation’’ as required by INA section 

101(a)(15)(H)(i)(b). 

The proposed ‘‘majority of the time’’ 

framework would allow a beneficiaryowner to perform some non-specialty 

occupation duties that are directly 

related to owning and directing the 

business, as long as a majority of their 

time performing the job would be spent 

performing the specialty occupation 

duties authorized in the approved 

petition. USCIS would analyze all of the 

job duties—specialty occupation duties 

and non-specialty occupation duties— 

which the petitioner must accurately 

describe in the petition along with the 

expected percentage of time to be spent 

performing each job duty, to determine 

whether the job would be in a specialty 

occupation and to determine whether 

the non-specialty occupation duties are 

directly related to owning and directing 

the business. If the beneficiary would 

spend a majority of their time 

performing specialty occupation duties, 

and if the non-specialty occupation 

duties are directly related to owning and 

directing the business, then the position 

may qualify as a specialty 

occupation.139

The ‘‘majority of the time’’ analysis 

would be similar to the approach 

generally taken for other H–1B petitions, 

although it would be more limiting in 

order to mitigate against potential 

abuse.140 However, DHS acknowledges 

that past adjudicative practices have not 

been entirely consistent as to what level 

of non-specialty occupation duties is 

permissible and what level of such 

duties would result in a finding that the 

proffered position as a whole does not 

qualify as a specialty occupation.141

Codifying the ‘‘majority of the time’’ 

framework would provide clarity in the 

regulations as to what is permissible in 

the specific context of beneficiaryowners. This, in turn, would better 

ensure consistency in adjudications of 

petitions involving beneficiary-owners. 

DHS again emphasizes that nothing in 

the proposed rule would change the 

Department of Labor’s administration 

and enforcement of statutory and 

regulatory requirements related to labor 

condition applications, including 

requirements concerning the 

appropriate prevailing wage and wage 

level when the proffered position 

involves a combination of 

occupations.142 For example, in some 

cases the petition might involve a 

combination of occupations that can 

affect the petitioner’s wage obligation, 

as detailed in DOL’s wage guidance.143

Generally, when an H–1B employer 

requests a prevailing wage 

determination from DOL, the National 

Prevailing Wage Center will assign to 

the position the occupational code that 

has the higher of the prevailing wages 

amongst the combination of 

occupations. Under this proposed rule, 

a petitioner may be authorized to 

employ a beneficiary-owner in a 

combination of occupations, provided 

that the petitioner pays the required 

wage, consistent with existing DOL 

wage guidance, even when the 

beneficiary-owner is performing nonspecialty occupation duties as 

authorized by USCIS. 

DHS is also proposing to limit the 

validity period for beneficiary-owned 

entities. DHS proposes to limit the 

validity period for the initial petition 

and first extension (including an 

amended petition with a request for an 

extension of stay) of such a petition to 

18 months each. See proposed 8 CFR 

214.2(h)(9)(iii)(E). Any subsequent 

extension would not be limited and may 

be approved for up to 3 years, assuming 

the petition satisfies all other H–1B 

requirements. DHS proposes limiting 

the first two validity periods to 18 

months as a safeguard against possible 

fraudulent petitions. While DHS sees a 

significant advantage in promoting the 

H–1B program to entrepreneurs, DHS 

believes that guardrails for beneficiaryowner petitions would be helpful to 

mitigate the potential for abuse of the 

H–1B program. Limiting the first two 

validity periods to 18 months each 

would allow DHS adjudicators to review 

beneficiary-owned petitions more 

frequently, and limiting the nature of 

non-specialty occupation duties that 

may be performed, would deter 

potential abuse and help to maintain the 

integrity of the H–1B program. DHS 

seeks public comments on these 

proposed safeguards and additional 

safeguards and flexibilities for 

beneficiary-owned businesses. 

8. Site Visits 

Pursuant to its authority under INA 

sections 103(a), 214(a), 235(d)(3) and 

287(b), 8 U.S.C. 1103(a), 1184(a), 

1225(d)(3) and 1357(b), sections 402, 

428 and 451(a)(3) of the HSA, 6 U.S.C. 

202, 236 and 271(a)(3), and 8 CFR 2.1, 

USCIS conducts inspections, 

evaluations, verifications, and 

compliance reviews, to ensure that a 

petitioner and beneficiary are eligible 

for the benefit sought and that all laws 

have been complied with before and 

after approval of such benefits. These 

inspections, verifications, and other 

compliance reviews may be conducted 

telephonically or electronically, as well 

as through physical on-site inspections 

(site visits). The existing authority to 

conduct inspections, verifications, and 

other compliance reviews is vital to the 


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144See 8 CFR 103.2(b). In evaluating the 

evidence, the truth is to be determined not by the 

quantity of evidence alone but by its quality. See 

Matter of Chawathe, 25 I&N Dec. 376 (quoting 

Matter of E–M-, 20 I&N Dec. 77, 80 (Comm’r 1989). 

145See USCIS, Administrative Site Visit and 

Verification Program, https://www.uscis.gov/aboutus/organization/directorates-and-program-offices/ 

fraud-detection-and-national-security-directorate/ 

administrative-site-visit-and-verification-program 

(last updated March 6, 2023). 

146Outside of the administrative compliance 

review program, USCIS conducts forms of 

compliance review in every case, including, for 

example, by researching information in relevant 

government databases or by reviewing public 

records and evidence accompanying the petition. 

147 DHS, USCIS, PRD (2022). PRD196. USCIS 

conducted these site visits through its 

Administrative and Targeted Site Visit Program. A 

finding of noncompliance indicates that the 

petitioner and/or third-party company is not 

complying with the terms and conditions of the 

petition but does not indicate that the petitioner 

willfully misrepresented information provided to 

USCIS. An example of noncompliance may include 

a petitioner sending a worker to an end-client, who 

without the petitioner’s knowledge, uses the worker 

to perform duties substantially different from those 

specified in the petition. 

148See USCIS, ‘‘Putting American Workers First: 

USCIS Announces Further Measures to Detect H– 

1B Visa Fraud and Abuse,’’ (Apr. 3, 2017), https:// 

www.uscis.gov/archive/putting-american-workersfirst-uscis-announces-further-measures-to-detect-h1b-visa-fraud-and-abuse. 

149See USCIS, ‘‘Administrative Site Visit and 

Verification Program,’’ https://www.uscis.gov/ 

about-us/directorates-and-program-offices/frauddetection-and-national-security/administrative-sitevisit-and-verification-program (last updated Mar. 6, 

2023). 

150See USCIS, ‘‘Fiscal Year 2017 Report to 

Congress: H–1B and L–1A Compliance Review Site 

Visits, Fraud Detection and National Security 

Compliance Review Data (October 1, 2012, to 

September 30, 2016),’’ at 7 (Jan. 17, 2018), https:// 

www.dhs.gov/sites/default/files/publications/ 

USCIS%20-%20H-1B%20and%20L1A%20Compliance%20Review

%20Site%20Visits.pdf (last visited Mar. 23, 2023). 

Note that USCIS conducted these site visits only 

through its Administrative Site Visit Program. 

151 DHS, USCIS, PRD (2019). Summary of H–1B 

Site Visits Data. Note that USCIS conducted these 

site visits only through its Administrative Site Visit 

Program. 

152 DHS acknowledges the 2017 Office of 

Inspector General report that addressed concerns 

with the H–1B site visit program and made 

recommendations for improvement. DHS, Office of 

Inspector General, ‘‘USCIS Needs a Better Approach 

to Verify H–1B Visa Participants,’’ OIG–18–03 (Oct. 

20, 2017), https://www.oig.dhs.gov/sites/default/ 

files/assets/2017/OIG-18-03-Oct17.pdf. Since the 

issuance of this report, USCIS has greatly improved 

its site visit program pursuant to the report’s 

recommendations, such that USCIS believes the 

concerns addressed in the 2017 report no longer 

pertain. Specifically, the report’s assessment that 

‘‘USCIS site visits provide minimal assurance that 

H–1B visa participants are compliant and not 

engaged in fraudulent activity’’ no longer pertains. 

As of March 31, 2019, the recommendations have 

been resolved. See DHS, Office of Inspector 

General, ‘‘DHS Open Unresolved Recommendations 

Over Six Months Old, as of March 31, 2019,’’ 

https://www.oig.dhs.gov/sites/default/files/DHSOpen-Recommendations-As-Of-033119_053019.pdf 

(not listing OIG–18–03 as an ‘‘open unresolved’’ 

report). DHS maintains that site visits, generally, are 

an important and effective tool for the H–1B 

program. The site visit provisions at proposed 8 

CFR 214.2(h)(4)(i)(B)(2)(i) would directly support 

USCIS’s continued efforts to strengthen the 

effectiveness of the site visit program and the 

integrity of the H–1B program overall. 

integrity of the immigration system as a 

whole and to the H–1B program 

specifically. In this rule, DHS is 

proposing to add regulations specific to 

the H–1B program to codify its existing 

authority and clarify the scope of 

inspections and the consequences of a 

petitioner’s or third party’s refusal or 

failure to fully cooperate with these 

inspections. See proposed 8 CFR 

214.2(h)(4)(i)(B)(2). The authority of 

USCIS to conduct on-site inspections, 

verifications, or other compliance 

reviews to verify information does not 

relieve the petitioner of its burden of 

proof or responsibility to provide 

information in the petition (and 

evidence submitted in support of the 

petition) that is complete, true, and 

correct.144

In July 2009, USCIS started a 

compliance review program as an 

additional way to verify information in 

certain visa petitions.145 Under this 

program, USCIS Fraud Detection and 

National Security (FDNS) officers make 

unannounced site visits to collect 

information as part of a compliance 

review. A compliance review verifies 

whether petitioners and beneficiaries 

are following the immigration laws and 

regulations that are applicable in a 

particular case. This process includes 

researching information in government 

databases, reviewing public records and 

evidence accompanying the petition, 

and interviewing the petitioner and 

beneficiary.146 It also includes 

conducting site visits. 

The site visits conducted by USCIS 

through its compliance review program 

have uncovered a significant amount of 

noncompliance in the H–1B program. 

For instance, during FYs 2019–22, 

USCIS conducted a total of 27,062 H–1B 

compliance reviews and found 5,037 of 

them, equal to 18.6 percent, to be 

noncompliant or indicative of fraud.147

These compliance reviews (during FYs 

2019–22) consisted of reviews 

conducted under both the 

Administrative Site Visit and 

Verification Program, which began in 

2009, and the Targeted Site Visit and 

Verification Program, which began in 

2017. The targeted site visit program 

allows USCIS to focus resources where 

fraud and abuse of the H–1B program 

may be more likely to occur.148

The data from FYs 2013–19 include 

data only from the Administrative Site 

Visit and Verification Program.149

During FYs 2013–16, USCIS conducted 

30,786 H–1B compliance reviews. Of 

those, 3,811 (12 percent) were found to 

be noncompliant.150 From FY 2016 

through March 27, 2019, USCIS 

conducted 20,492 H–1B compliance 

reviews and found 2,341 (11.4 percent) 

to be noncompliant.151 Of the site visits 

conducted during FYs 2013–22, lack of 

cooperation may have contributed to a 

finding of noncompliance, although not 

all findings of noncompliance mean 

there was a lack of cooperation. 

Site visits are important to 

maintaining the integrity of the H–1B 

program and in detecting and deterring 

fraud and noncompliance with H–1B 

program requirements.152 Cooperation 

is crucial to USCIS’s ability to verify 

information about employers and 

workers, and the overall conditions of 

employment. Therefore, as noted above, 

DHS is proposing additional regulations 

specific to the H–1B program to set forth 

the scope of on-site inspections and the 

consequences of a petitioner’s or third 

party’s refusal or failure to fully 

cooperate with these inspections. This 

proposed rule would provide a clear 

disincentive for petitioners that do not 

cooperate with compliance reviews and 

inspections while giving USCIS a 

greater ability to access and confirm 

information about employers and 

workers as well as identify fraud. 

The proposed regulations would make 

clear that inspections may include, but 

are not limited to, an on-site visit of the 

petitioning organization’s facilities, 

interviews with its officials, review of 

its records related to compliance with 

immigration laws and regulations, and 

interviews with any other individuals or 

review of any other records that USCIS 

may lawfully obtain and that it 

considers pertinent to verify facts 

related to the adjudication of the 

petition, such as facts relating to the 

petitioner’s and beneficiary’s eligibility 

and continued compliance with the 

requirements of the H–1B program. See 

proposed 8 CFR 214.2(h)(4)(i)(B)(2). The 

proposed regulation would also clarify 

that an inspection may take place at the 

petitioning organization’s headquarters, 

satellite locations, or the location where 

the beneficiary works or will work, 

including the beneficiary’s home, or 

third-party worksites, as applicable. The 

proposed provisions would make clear 

that an H–1B petitioner or any employer 

must allow access to all sites where the 

labor will be performed for the purpose 

of determining compliance with 

applicable H–1B requirements. The 

word ‘‘employer’’ used in this context 

would include petitioners and thirdparty contractors. DHS believes that the 

ability to inspect various locations is 

critical because the purpose of a site 


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72908 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

153See INA section 291, 8 U.S.C. 1361; Matter of 

Simeio Solutions, 26 I&N Dec. 542, 549 (AAO 2015) 

(‘‘It is the petitioner’s burden to establish eligibility 

for the immigration benefit sought.’’); Matter of 

Skirball Cultural Center, 25 I&N Dec. 799, 806 

(AAO 2012) (‘‘In visa petition proceedings, the 

burden of proving eligibility for the benefit sought 

remains entirely with the petitioner.’’). 

154See Defensor v. Meissner, 201 F.3d 384, 388 

(5th Cir. 2000) (‘‘If only [the employer]’s 

requirements could be considered, then any alien 

with a bachelor’s degree could be brought into the 

United States to perform a non-specialty 

occupation, so long as that person’s employment 

was arranged through an employment agency which 

required all clients to have bachelor’s degrees. 

Thus, aliens could obtain six year visas for any 

occupation, no matter how unskilled, through the 

subterfuge of an employment agency. This result is 

completely opposite the plain purpose of the statute 

and regulations, which is to limit [H–1B] visas to 

positions which require specialized experience and 

education to perform.’’). 

inspection is to confirm information 

related to the petition, and any one of 

these locations may have information 

relevant to a given petition. If the 

petitioner and any third-party contractor 

does not allow USCIS officials to 

interview H–1B workers, including in 

the absence of the employer or the 

employer’s representatives, this may 

also result in denial or revocation of the 

associated H–1B petition(s). The 

interviews may take place on the 

employer’s property, or as feasible, at a 

neutral location agreed to by the 

interviewee and USCIS away from the 

employer’s property. The presence of 

employer representatives during such 

interviews can reasonably be expected 

to have a chilling effect on the ability of 

interviewed workers to speak freely and, 

in turn, impede the Government’s 

ability to ensure compliance with the 

terms and conditions of the H–1B 

program. 

The proposed regulation also states 

that if USCIS is unable to verify facts 

related to an H–1B petition, including 

due to the failure or refusal of the 

petitioner or third party to cooperate in 

an inspection or other compliance 

review, then the lack of verification of 

pertinent facts, including from failure or 

refusal to cooperate, may result in 

denial or revocation of the approval of 

any petition for workers who are or will 

be performing services at the location or 

locations that are a subject of inspection 

or compliance review, including any 

third-party worksites. See proposed 8 

CFR 214.2(h)(4)(i)(B)(2). A 

determination that a petitioner or third 

party failed or refused to cooperate 

would be case specific, but it could 

include situations where one or more 

USCIS officers arrived at a petitioner’s 

worksite, made contact with the 

petitioner and properly identified 

themselves to a petitioner’s 

representative, and the petitioner 

refused to speak to the officers or 

refused entry into the premises or 

refused permission to review human 

resources (HR) records pertaining to the 

beneficiary. Failure or refusal to 

cooperate could also include situations 

where a petitioner or employer agreed to 

speak but did not provide the 

information requested within the time 

period specified, or did not respond to 

a written request for information within 

the time period specified. Before 

denying or revoking the petition, USCIS 

would provide the petitioner an 

opportunity to rebut adverse 

information and present information on 

its own behalf in compliance with 8 

CFR 103.2(b)(16). 

This new provision would put 

petitioners on notice of the specific 

consequences for noncompliance or lack 

of cooperation, whether by them or by 

a third party. It has long been 

established that, in H–1B visa petition 

proceedings, it is the petitioner’s burden 

to establish eligibility for the 

immigration benefit sought.153 If USCIS 

conducts a site visit to verify facts 

related to the H–1B petition or to verify 

that the beneficiary is or will be 

employed consistent with the terms of 

the petition approval, and is unable to 

verify relevant facts and otherwise 

confirm general compliance, then the 

petition could properly be denied or the 

approval revoked. This would be true 

whether the unverified facts related to a 

petitioner worksite or a third-party 

worksite at which a beneficiary had 

been or would be placed by the 

petitioner. It would also be true whether 

the failure or refusal to cooperate were 

by the petitioner or a third party. 

Petitioners could consider notifying 

third parties at whose worksites 

beneficiaries may be working about the 

possibility of DHS verification efforts 

regarding the immigration benefit. 

9. Third-Party Placement (Codifying 

Defensor) 

In certain circumstances where an H– 

1B worker provides services for a third 

party, USCIS would look to that third 

party’s requirements for the 

beneficiary’s position, rather than the 

petitioner’s stated requirements, in 

assessing whether the proffered position 

qualifies as a specialty occupation. As 

required by both INA section 214(i)(1) 

and 8 CFR 214.2(h)(4)(i)(A)(1), an H–1B 

petition for a specialty occupation 

worker must demonstrate that the 

worker will perform services in a 

specialty occupation that requires 

theoretical and practical application of 

a body of highly specialized knowledge 

and attainment of a baccalaureate or 

higher degree in the specific specialty 

(or its equivalent) as a minimum 

requirement for entry into the 

occupation in the United States. This 

proposal would ensure that petitioners 

are not circumventing specialty 

occupation requirements by imposing 

token requirements or requirements that 

are not normal to the third party. 

Specifically, under proposed 8 CFR 

214.2(h)(4)(i)(B)(3), if the beneficiary 

will be staffed to a third party, meaning 

they will be contracted to fill a position 

in a third party’s organization, the 

actual work to be performed by the 

beneficiary must be in a specialty 

occupation. Therefore, it is the 

requirements of that third party, and not 

the petitioner, that are most relevant 

when determining whether the position 

is a specialty occupation. If the 

beneficiary will work for a third party 

and perform work that is part of the 

third party’s regular operations, the 

actual work to be performed by the 

beneficiary must be in a specialty 

occupation based on the requirements 

for the position imposed by that third 

party. While a petitioning employer may 

be the entity that hires and pays the 

beneficiary, the actual services the 

beneficiary provides may be for a third 

party. When interpreting the meaning of 

‘‘perform services . . . in a specialty 

occupation,’’ INA section 

101(a)(15)(H)(i)(b), in the context of 

certain third-party placements, USCIS 

would look to the position requirements 

imposed by the third party if the 

beneficiary will be ‘‘staffed’’ to that 

third party. Under such an 

interpretation, a position would not 

qualify as a specialty occupation simply 

because the petitioning employer 

decides to require a baccalaureate or 

higher degree in a specific specialty.154

As stated in proposed 8 CFR 

214.2(h)(4)(i)(B)(3), ‘‘staffed’’ means that 

the beneficiary ‘‘will be contracted to 

fill a position in a third party’s 

organization and becomes part of that 

third party’s organizational hierarchy by 

filling a position in that hierarchy (and 

not merely providing services to the 

third party.’’ There is a difference 

between a beneficiary who is ‘‘staffed’’ 

to a third party and a beneficiary who 

provides services to a third party 

(whether or not at a third-party 

location). A beneficiary who is ‘‘staffed’’ 

to a third party becomes part of that 

third party’s organizational hierarchy by 

filling a position in that hierarchy, even 

when the beneficiary technically 

remains an employee of the petitioner. 

In this circumstance where the 

beneficiary fills a position within the 

third party’s organizational hierarchy, 

the third party would be better 


lotter on DSK11XQN23PROD with PROPOSALS3
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155See, e.g., In Re. ---, 2010 WL 3010500 (AAO 

Jan. 12, 2010) (‘‘In support of this analysis, USCIS 

routinely cites Defensor v. Meissner, 201 F.3d 384 

(5th Cir. 2000), in which an examination of the 

ultimate employment of the beneficiary was 

deemed necessary to determine whether the 

position constitutes a specialty occupation.’’); In Re. 

5037859, 2019 WL 6827396 (AAO Nov. 7, 2019) 

(‘‘The scenario in Defensor has repeatedly been 

recognized by Federal Courts as appropriate in 

determining which entity should provide the 

requirements of an H–1B position and the actual 

duties a beneficiary would perform.’’) (citing to 

Altimetrik Corp. v. USCIS, No. 2:18–cv–11754, at *7 

(E.D. Mich. Aug. 21, 2019); Valorem Consulting 

Grp. v. USCIS, No. 13–1209–CV–W–ODS, at *6 

(W.D. Mo. Jan. 15, 2015); KPK Techs. v. Cuccinelli, 

No. 19–10342, at *10 (E.D. Mich. Sep. 16, 2019); 

Altimetrik Corp. v. Cissna, No. 18–10116, at *11 

(E.D. Mich. Dec. 17, 2018); Sagarwala v. Cissna, No. 

CV 18–2860 (RC), 2019 WL 3084309, at *9 (D.D.C. 

July 15, 2019)). 

positioned than the petitioner to be 

knowledgeable of the actual degree 

requirements for the beneficiary’s work. 

Thus, it is reasonable for USCIS to 

consider the requirements of the third 

party as determinative of whether the 

position is a specialty occupation. See 

proposed 8 CFR 214.2(h)(4)(i)(B)(3). 

Compared to all cases where the H– 

1B beneficiary provides services to a 

third party, a third party would not 

always be in a better position than the 

petitioner to set the requirements of the 

proffered position. For example, a 

beneficiary may provide software 

development services to a third party as 

part of the petitioner’s team of software 

developers on a discrete project, or a 

beneficiary employed by a large 

accounting firm may provide accounting 

services to various third-party clients. In 

these examples, proposed 8 CFR 

214.2(h)(4)(i)(B)(3) would not apply, 

because it would not be reasonable to 

assume that the third party would be 

better positioned than the petitioner to 

know the actual degree requirements for 

the beneficiary’s work. DHS narrowed 

down the applicability of proposed 8 

CFR 214.2(h)(4)(i)(B)(3) to only the 

subset of beneficiaries who would be 

‘‘staffed’’ to a third party because these 

examples illustrate how a third party’s 

degree requirements would not always 

be as relevant as the petitioner’s degree 

requirements. 

Proposed 8 CFR 214.2(h)(4)(i)(B)(3) 

would be generally consistent with 

long-standing USCIS practice.155 In 

Defensor v. Meissner, 201 F.3d 384 (5th 

Cir. 2000), the court recognized that, if 

only the petitioner’s requirements are 

considered, then any beneficiary with a 

bachelor’s degree could be brought to 

the United States in H–1B status to 

perform non-specialty occupation work, 

as long as that person’s employment 

was arranged through an employment 

agency that required all staffed workers 

to have bachelor’s degrees. This result 

would be the opposite of the plain 

purpose of the statute and regulations, 

which is to limit H–1B visas to positions 

that require specialized education to 

perform the duties. If the work that the 

beneficiary would actually perform does 

not require the theoretical and practical 

application of a body of highly 

specialized knowledge and attainment 

of a baccalaureate or higher degree in a 

specific specialty or its equivalent, then 

the position would not qualify as an H– 

1B specialty occupation. In such a case, 

the petitioning employer’s stated 

education and experience requirements 

for the beneficiary’s position would not 

be determinative to the specialty 

occupation assessment. USCIS would 

make the determination as to whether 

the beneficiary would be ‘‘staffed’’ to a 

third party on a case-by-case basis, 

taking into consideration the totality of 

the relevant circumstances. 

D. Request for Preliminary Public Input 

Related to Future Actions/Proposals 

1. Use or Lose 

DHS wants to ensure that the limited 

number of H–1B cap-subject visas and 

new H–1B status grants available each 

fiscal year are used for non-speculative 

job opportunities. Demand for H–1B 

workers who would be subject to the 

annual numerical limitations, including 

those eligible under the advanced 

degree exemption, has routinely 

exceeded the annual H–1B numerical 

allocations. DHS believes there is a 

problem of petitioners filing H–1B capsubject petitions even though there is no 

job opportunity available as of the 

requested start date. As illustrated by 

the data below, a significant percentage 

of H–1B beneficiaries do not enter the 

United States within six months of the 

requested employment start date or H– 

1B petition approval date, whichever 

was later, or within 90 days of the visa 

validity start date. The data also show 

a large percentage of new or amended 

petitions received before the 

beneficiary’s arrival in the United 

States, suggesting that there may not 

have been a bona fide job opportunity 

available at the time of filing and the 

initial petition filed was simply to 

secure an H–1B cap number for the 

worker. Given the history of demand for 

H–1B visas that greatly exceeds supply, 

it is of great concern when a petitioner 

requests an H–1B cap number and 

receives approval, but does not use that 

approved H–1B petition to employ an 

H–1B worker when the petitioner 

claimed to need that worker to start and 

significantly delays such employment 

by six months or more. 

DHS has compiled internal data to 

help demonstrate the potential scale of 

the problem. The first two tables below 

focus on delayed entry into the United 

States by beneficiaries of H–1B capsubject petitions that selected consular 

processing. The third table looks at the 

same population of cases and amended 

or new petitions received prior to the 

beneficiary’s arrival in the United 

States. DHS believes that these may be 

indicators that the petitioners in these 

cases had speculative job opportunities 

at the time of filing their H–1B petitions. 

Table 9 shows data on H–1B capsubject petitions that selected consular 

processing into the United States and 

that DHS was able to match with the 

beneficiary’s arrival data into the United 

States. 


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72910 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

156FY 2021 data was not included because of the 

variances in visa entries and closed borders due to 

the COVID–19 pandemic. 

157These data only track whether a beneficiary 

entered the United States in H–1B status after 6 

months of the employment start date or H–1B 

petition approval date, whichever was later; the 

data do not track a beneficiary’s prior or subsequent 

travel history into or outside of the United States. 

By capturing data on entries made after the 

requested employment start date on the H–1B 

petition or the H–1B petition approval date, 

whichever was later, these data should exclude 

entries that were made after 6 months of the 

requested employment start date because of a delay 

in USCIS approving the H–1B petition. 

This table shows that, from FYs 2017 

through 2022 (excepting FY 2021),156 on 

average, approximately 43 percent of H– 

1B cap-subject beneficiaries of petitions 

that selected consular processing (and 

that DHS was able to match with the 

beneficiaries’ arrival data) did not enter 

the United States in H–1B status within 

six months of the requested 

employment start date on the H–1B 

petition or the H–1B petition approval 

date, whichever was later.157 While it is 

reasonable to conclude that some of 

these delays were due to legitimate 

reasons (e.g., long consular wait times), 

other delays may have been due to 

illegitimate reasons (e.g., the petitioner 

filing an H–1B petition despite not 

having work available on the requested 

start date). While DHS is aware that 

these data are imperfect, in part because 

DHS was not able to match some 

petitions with beneficiary arrival data, 

these data illustrate the scale of the 

issue—that nearly half of beneficiaries 

who consular processed appear to have 

not entered the United States in H–1B 

status within six months of the 

requested start date. 

DHS is aware that there have been 

significant visa delays at some 

consulates, especially during the last 

few years. Table 10 takes this into 

account by showing data on H–1B 

beneficiaries who went through 

consular processing, who arrived more 

than 90 days after their DOS visa 

validity start date, and for whom DHS 

was able to match with arrival data into 

the United States with corresponding 

H–1B petitions. 


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FY 

2017 

2018 

Table 9: Arrivals After 6 Months from Requested 

Employment Start Date or H-lB Petition Approval 

Date, Whichever Is Later (Percent) 

48.4% 

41.9% 

2019 38.4% 

2020 38.7% 

2022 YTD 41.1% 

AVERAGE 42.8% 

Source: C3, Sept. 15, 2022. ADIS, Aug. 13, 2022. Data in FY 2022 YTD only through 

source pull-date. 

Note(s): ADIS matching completed using first name, last name, and date of birth. 

Associated Receipts are receipts requesting selection A, B, C, or Fin Part 2Q2 ofl129. 

Average times are calculated only for records with a matching ADIS arrival. 

ADIS matching completed on ADIS H-lB records onlv. 
Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 72911 

158FY 2021 data was not included because of the 

variances in visa entries and closed borders due to 

the COVID–19 pandemic. 

159Part 2, question 2, asks for the ‘‘Basis for 

Classification,’’ and option ‘‘a’’ is for ‘‘New 

employment.’’ 

160Part 2, question 2, asks for the ‘‘Basis for 

Classification,’’ and option ‘‘b’’ is for ‘‘Continuation 

of previously approved employment without 

change with the same employer.’’ 161Part 2, question 2, asks for the ‘‘Basis for 

Classification,’’ and option ‘‘c’’ is for ‘‘Change in 

previously approved employment.’’ 

162Part 2, question 2, asks for the ‘‘Basis for 

Classification,’’ and option ‘‘f’’ is for ‘‘Amended 

petition.’’ 

This table shows that, from FYs 2017 

through 2022 (excepting FY 2021),158 on 

average, more than 26 percent of H–1B 

cap-subject beneficiaries who selected 

consular processing arrived in the 

United States more than 90 days after 

the DOS visa validity start date. Again, 

while it is reasonable to conclude that 

some of these delays were due to 

legitimate reasons (e.g., a medical 

emergency pertaining to the beneficiary 

or the beneficiary’s immediate family), 

other delays may have been due to 

illegitimate reasons (e.g., the petitioner 

filing an H–1B petition despite not 

having work available on the requested 

start date). 

DHS has also compiled internal data 

on the number of amended or new 

petitions received prior to the 

beneficiary’s arrival in the United 

States, which may also be an indicator 

that a petitioner had a speculative job 

opportunity at the time of filing. Table 

11 shows data on the percentage of 

amended or new petitions received 

prior to the beneficiary’s arrival in the 

United States that DHS was able to 

match with the beneficiary’s arrival data 

into the United States. 


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FY 

2017 

2018 

2019 

2020 

2022 YTD 

TOTAL 

Table 10: Arrivals After 90 Days of DOS Visa Validity 

Start (Percent) 

38.8% 

27.0% 

16.1% 

22.4% 

21.2% 

AVERAGE 26.6% 

Source: C3, Sept. 15, 2022. ADIS, Aug. 13, 2022. Data in FY 2022 YTD only 

through source pull-date. 

Note(s): ADIS matching completed using first name, last name, and date of 

birth. 

Associated Receipts are receipts requesting selection A, B, C, or Fin Part 2Q2 of 

1-129. 

Average times are calculated only for records with a matching ADIS arrival. 

ADIS matching completed on ADIS H-lB records only. 
72912 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

163FY 2021 data was not included because of the 

variances in visa entries and closed borders due to 

the COVID–19 pandemic. 

Table 11 shows that from FYs 2017 

through 2022 (excepting FY 2021),163 an 

average of approximately 15 percent of 

amended or new petitions where the 

beneficiary selected consular processing 

are received prior to the beneficiary’s 

arrival in the United States. Again, 

while it is reasonable to conclude that 

some of these amended or new petitions 

were due to legitimate reasons (e.g., a 

legitimate shift in work location or endclient project), other petitions may have 

been filed due to illegitimate reasons 

(e.g., the petitioner filing an H–1B 

petition despite not having work 

available on the requested start date). 

DHS believes that these data illustrate 

that there may be a problem with 

petitioners filing H–1B petitions and 

taking up cap numbers without having 

non-speculative job opportunities as of 

the requested start date on the petition. 

DHS is looking for the most effective 

ways to prevent petitioners from 

receiving approval for speculative H–1B 

employment, and to curtail the practice 

of delaying H–1B cap-subject 

beneficiary’s employment in the United 

States until a bona fide job opportunity 

materializes. DHS has considered 

various approaches—two of which are 

discussed below but has determined 

that each of them has potentially 

significant downsides. 

For example, although current 8 CFR 

214.2(h)(8)(ii)(B) requires petitioners to 

notify USCIS if a petition goes unused 

because the beneficiary does not apply 

for admission to the United States, so 

that the agency may revoke approval of 

the petition, this regulatory provision 

does not include a deadline for 

admission or a reporting deadline. Thus, 

one approach DHS considered would be 

to amend 8 CFR 214.2(h)(8)(ii)(B) to 

require petitioners to notify USCIS if a 

beneficiary does not apply for 

admission after a certain amount of 

time, so that USCIS may revoke the 

approval of the petition. DHS could add 

a reporting requirement, so that a failure 

to report, or reporting that the 

beneficiary had not yet been admitted 

within the required timeframe, could be 

a basis for revocation. This proposal 

would also afford petitioners an 

opportunity to provide legitimate 

reasons for the delay in admission and 

avoid revocation. However, this 

approach would not prevent a petitioner 

without a legitimate reason for the delay 

from circumventing the intent of this 

provision, such as by filing an amended 

petition for the cap-subject beneficiary 

and further delaying their admission, or 

having the beneficiary enter the United 

States one day before the deadline and 

then leaving shortly thereafter. In 

addition, while the revocation of the H– 

1B petition may serve as a disincentive 

to the petitioner and discourage such 

conduct the next time around, it may 

not be the most efficient way to deter 

the filing of the H–1B petition itself 

given the time that would have elapsed 

between the time of filing and the final 

revocation. 

Another approach DHS considered 

would be to create a rebuttable 

presumption that a petitioner had only 

a speculative position available for the 

beneficiary of an approved H–1B capsubject petition, which would be 

triggered if certain circumstances 

occurred. These circumstances might 

include delayed entry or filing an 

amended petition before the beneficiary 

would have been admitted to the United 

States in H–1B status. If the petitioner 

were unable to rebut this presumption, 

USCIS could deny any extension 

request based on the previously 

approved cap-subject H–1B cap-subject 

petition and could revoke the initial 

petition approval. Regarding delayed 

entry, DHS considered proposing that 

the rebuttable presumption would be 

triggered if the beneficiary had not 

entered the United States in H–1B status 

either within a certain number of days 

of the requested start date or within a 


lotter on DSK11XQN23PROD with PROPOSALS3EP23OC23.017</GPH>

Table 11: Associated Petitions Received Prior to Arrival 

Percent of 

Percent of Percent of Percent of Percent of Associated 

Associated Associated Associated Associated Receipts 

Petitions Receipts are Receipts are Receipts are are receipts 

Received Prior receipts receipts receipts requesting 

to Arrival requesting requesting requesting selection F 

(Consular selection A in selection Bin selection C in in Part 

Processing Part 2Q2 of I- Part 2Q2 of I- Part 2Q2 ofl- 2Q2 of IFY Onlv) 129.159 129.160 129.161 129.162 

2017 24.2% 2.0% 0.6% 1.2% 20.4% 

2018 14.5% 1.8% 0.6% 1.2% 11.0% 

2019 9.6% 2.3% 0.9% 1.8% 4.6% 

2020 15.3% 6.1% 1.4% 2.3% 5.4% 

2022 YTD 2.3% 0.9% 0.0% 0.2% 1.2% 

Total Average 14.9% 2.6% 0.7% 1.4% 10.2% 

Source: C3, Sept. 15, 2022. ADIS, Aug. 13, 2022. Data in FY 2022 YTD only through source pull-date. 

Note(s): ADIS matching completed using first name, last name, and date of birth. 

Associated Receipts are receipts requesting selection A, B, C, or Fin Part 2Q2 ofl-129. 

Average times are calculated only for records with a matching ADIS arrival. 

ADIS matching completed on ADIS H-lB records onlv. 
Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 72913 

164See DHS, Office of the Citizenship and 

Immigration Services Ombudsman, 

Recommendation to Remove a Barrier Pursuant to 

Executive Order 14012: Improving U.S. Citizenship 

and Immigration Services’ Form I–129 Notification 

Procedures Recommendation Number 62 (Mar. 31, 

2022), https://www.dhs.gov/sites/default/files/2022- 

03/CIS%20OMBUDSMAN_I-129_BENEFICIARY_

RECOMMENDATION_fnl_03-2022_508.pdf (‘‘lack 

of direct notification may leave them without status 

documentation, rendering them noncompliant with 

the law, susceptible to abuse by employers, and 

unable to access benefits requiring proof of status’’). 

This report formally recommended that USCIS 

directly notify beneficiaries of Form I–129 actions 

taken in the petition on their behalf. 

165The Form I–797 approval notice instructs 

petitioners that the lower portion of the notice, 

including Form I–94, ‘‘should be given to the 

beneficiary(ies).’’ 

166See USCIS Memorandum, Response to 

Recommendations on Improving Form I-129 

Notification Procedures (Aug. 11, 2022), https://

www.dhs.gov/sites/default/files/2022-08/ 

SIGNED%20USCIS%20Response%20to

%20Formal%20Recommendation%20- 

%20Form%20I-129.08122022_v2.pdf. 

certain number of days of the validity 

date of their H–1B nonimmigrant visa 

based on the cap-subject petition. 

Ultimately, DHS concluded that this 

approach of a rebuttable presumption 

would create significant evidentiary 

burdens for legitimate petitioners. 

Further, while it would bolster program 

integrity, similar to the first approach, it 

would not be an efficient deterrent 

given the time that would have elapsed 

between the time of filing and the denial 

of the extension request or the final 

revocation. 

As discussed, DHS is aware that 

either option could have a broad reach 

and potentially include petitions for 

beneficiaries whose admission into the 

United States was delayed for legitimate 

reasons beyond their control, such as 

lengthy consular processing times. 

Either option would place an additional 

burden on petitioners, which may be 

particularly difficult to overcome for a 

subsequent petitioner that is distinct 

from the original petitioner that filed the 

initial H–1B cap-subject petition. 

Further, the above options would focus 

on the beneficiary’s timely admission 

into the United States but would not 

account for the beneficiary’s or 

petitioner’s subsequent actions. 

Therefore, because DHS believes there 

is a problem of petitioners filing H–1B 

cap-subject petitions for speculative job 

opportunities that would not be fully 

resolved by the changes at proposed 8 

CFR 214.2(h)(4)(iii)(F), DHS is seeking 

preliminary public comments on the 

approaches described above, as well as 

soliciting ideas that would further curb 

or eliminate the possibility that 

petitioners may have speculative job 

opportunities at the time of filing or 

approval of H–1B petitions and delay 

admission of H–1B beneficiaries until 

they have secured work for them. DHS 

is hoping to use the public input it 

receives to develop proposals that 

would further strengthen the 

programmatic framework and 

complement provisions already 

proposed in this NPRM, such as the 

proposed requirement that the 

petitioner establish a non-speculative 

position for the beneficiary as of the 

start date of the validity period under 

proposed 8 CFR 214.2(h)(4)(iii)(F) and 

the proposed requirement that a 

petitioner have a bona fide job offer 

under proposed 8 CFR 214.2(h)(4)(ii). 

Specifically, DHS is requesting ideas 

and, where possible, supporting data for 

future regulatory, subregulatory, and 

enforcement actions that USCIS could 

take, alone or in partnership with other 

agencies, to mitigate this behavior. With 

respect to the two approaches discussed 

above, DHS encourages commenters to 

provide input on how a time restriction 

on admission, or a rebuttable 

presumption as described above, could 

impact legitimate business practices. 

DHS also encourages commenters to 

provide ideas on other ways DHS could 

better ensure petitions are filed only for 

non-speculative job opportunities 

without imposing an unnecessary 

burden on H–1B cap-subject petitioners. 

2. Beneficiary Notification 

DHS is seeking preliminary public 

input on ways to provide H–1B and 

other Form I–129 beneficiaries with 

notice of USCIS actions taken on 

petitions filed on their behalf, including 

receipt notices for a petition to extend, 

amend, or change status filed on their 

behalf. USCIS does not currently 

provide notices directly to Form I–129 

beneficiaries. DHS is aware that the lack 

of petition information may leave Form 

I–129 beneficiaries unable to verify their 

own immigration status and susceptible 

to employer abuse.164 DHS is also aware 

that having case status information 

would improve worker mobility and 

protections. 

DHS is committed to addressing the 

issue of beneficiary notification but is 

not at this time proposing a specific 

beneficiary notification process or 

regulation. The agency continues to 

research and consider the feasibility, 

benefits, and costs of various options 

separate and apart from this proposed 

rule. At this time, DHS would like to 

solicit preliminary public comments on 

various options, and in particular, one 

option currently being considered for 

potential future action separate from 

this rulemaking. This option would 

require Form I–129 petitioners to 

provide a copy of the notice of USCIS 

action to beneficiaries in the United 

States seeking extension or change of 

status. DHS believes such notification 

may be especially beneficial in the 

context of extensions or changes of 

status. While beneficiaries who are 

outside of the United States will receive 

basic petition information on Form I–94, 

Arrival-Departure Record, and on their 

nonimmigrant visa, beneficiaries who 

are already in the United States must 

rely entirely on petitioners and 

employers to provide such 

information.165

DHS recognizes this option would 

leave open the possibility that 

petitioners would not comply with this 

requirement, something DHS intends to 

forestall, but believes it would still 

provide benefits and worker protections 

while USCIS continues to explore other 

options, including the feasibility of 

technological solutions that would 

allow USCIS to directly notify 

beneficiaries or allow beneficiaries to 

directly access case status.166 DHS is 

particularly interested in comments that 

cite evidence of the expected costs and 

burdens on petitioners as a result of 

such a requirement, as well as 

comments and evidence about the 

extent that such a provision would 

benefit H–1B workers, which DHS will 

take into consideration when crafting 

potential future solutions or regulatory 

proposals. 

E. Potential Publication of One or More 

Final Rules 

As indicated earlier in this preamble, 

after carefully considering public 

comments it receives on this NPRM, 

DHS may publish one or more final 

rules to codify the provisions proposed 

in this NPRM. 

F. Severability 

DHS intends for the provisions of this 

proposed rule, if finalized through one 

or more final rules, to be severable from 

each other such that if a court were to 

hold that any provision is invalid or 

unenforceable as to a particular person 

or circumstance, the rule would remain 

in effect as to any other person or 

circumstance. While the various 

provisions of this proposed rule, taken 

together, would provide maximum 

benefit with respect to modernizing the 

H–1B program and strengthening 

program integrity, none of the 

provisions are interdependent and 

unable to operate separately, nor is any 

single provision essential to the rule’s 

overall workability. DHS welcomes 

public input on the severability of 

provisions contained in this proposed 

rule. 


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72914 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

V. Statutory and Regulatory 

Requirements 

A. Executive Order 12866 (Regulatory 

Planning and Review) and Executive 

Order 13563 (Improving Regulation and 

Regulatory Review) 

Executive Orders (E.O.) 12866 

(Regulatory Planning and Review), as 

amended by Executive Order 14094 

(Modernizing Regulatory Review), and 

13563 (Improving Regulation and 

Regulatory Review) direct agencies to 

assess the costs and benefits of available 

regulatory alternatives and, if a 

regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety effects, distributive impacts, 

and equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. 

The Office of Management and Budget 

(OMB) has designated this proposed 

rule a ‘‘significant regulatory action’’ as 

defined under section 3(f) of E.O. 12866, 

as amended by Executive Order 14094, 

but it is not significant under section 

3(f)(1) because its annual effects on the 

economy do not exceed $200 million in 

any year of the analysis. Accordingly, 

OMB has reviewed this proposed rule. 

1. Summary 

As discussed in the preamble, the 

purpose of this rulemaking is to 

modernize and improve the regulations 

governing the H–1B program by: (1) 

modernizing and streamlining H–1B 

program requirements and improving 

program efficiency; (2) providing greater 

benefits and flexibilities for petitioners 

and beneficiaries; and (3) improving 

integrity measures. 

For the 10-year period of analysis of 

the proposed rule DHS estimates the 

annualized net costs of this rulemaking 

will be $6,339,779 annualized at 3 

percent and 7 percent. Table 12 

provides a more detailed summary of 

the proposed rule provisions and their 

impacts. 

BILLING CODE 9111–97–P 


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Table 12. Summarv of Provisions and Imoacts of the Prooosed Rule 

Description of Proposed Estimated Estimated Benefits of Proposed Rule Provisions Costs/Transfers of Change to Provisions Provisions Provisions 

1. Amended Petitions □ DHS proposes to Quantitative: Quantitative: 

clarify when an Petitioners - Petitioners -

amended or new H-lB □ None □ DHS estimates the total 

petition must be filed annual cost savings to 

due to a change in an petitioners would be 

H-lB worker's place DHS/USCIS- $297,673. 

of employment. □ None 

Qualitative: DHS/USCIS - Petitioners - □ None □ None 

DHS/USCIS- Qualitative: 

Petitioners - □ None DHS/USCIS-

□ None 

2. Deference □ DHS proposes to Quantitative: Quantitative: 

codify and clarify its Petitioners - Petitioners -

existing deference □ None □ DHS estimates the total 

policy. annual cost savings to 

DHS/USCIS- petitioners would be □ None $338,412 based on the 

pre policy baseline. 

Qualitative: 

Petitioners - DHS/USCIS -

□ None □ None 

DHS/USCIS- Qualitative: 

□ None Petitioners -

□ DHS anticipates that 

codifying its existing 

deference policy would 

save petitioners time 

from having to answer 

RFEs, and provide 

more certainty when 

businesses are planning 

for their HR needs. 

DHS/USCIS-

□ DHS may issue and 

review fewer RFEs, 

which may save 

adjudicators time. 
72916 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 


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3. Evidence of Maintenance of □ DHS proposes to Quantitative: Quantitative: 

Status clarify that evidence of Petitioners - Petitioners -

maintenance of status □ None □ None 

is required for petitions 

where there is a request 

to extend or amend the DHS/USCIS- DHS/USCIS -

beneficiary's stay. □ None □ None 

Qualitative: Qualitative: 

Petitioners - Petitioners -

□ None □ DHS anticipates that 

codifying and 

providing clarification 

DHS/USCIS- of the requirements for 

□ None maintenance of status 

applications would at 

least render some RFEs 

andNOIDs 

unnecessary; therefore, 

may save the 

petitioner's time. 

DHS/USCIS-

□ This would in tum 

reduce the added 

burden on adjudicators 

associated with 

receiving, responding 

to, and adjudicating 

RFEs and NOIDs, and 

decrease the number of 

RFEs and NOIDs 

4. Eliminating the Itinerary □ DHS proposes to Quantitative: Quantitative: 

Requirement for H Programs eliminate the H Petitioners - Petitioners -

programs' itinerary □ None □ DHS estimates the total 

requirement. annual cost savings to 

DHS/USCIS- petitioners would be 

$708,300. □ None 

Qualitative: DHS/USCIS - Petitioners - □ None □ None 

DHS/USCIS- Qualitative: 

Petitioners - □ None □ This may benefit 

petitioners who have 

beneficiaries at 
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alternative worksites 

and agents. 

DHS/USCIS-

□ None 

5. Validity Expires Before □ DHS proposes to allow Quantitative: Quantitative: 

Adjudication H-lB petitions to be Petitioners - Petitioners -

approved or have their □ None □ None 

requested validity 

period dates extended 

ifUSCIS adjudicates DHS/USCIS - DHS/USCIS -

and deems the petition □ None □ None 

approvable after the 

initially requested 

validity period end- Qualitative: Qualitative: 

date, or the period for Petitioners - Petitioners -

which eligibility has □ Increased cost of □ This proposed change 

been established, has receiving an RFE and may save the 

passed. This typically spending time to petitioners the 

would happen if review it. USCIS may opportunity cost of USCIS deemed the issue an RFE asking 

petition approvable whether the petitioner time and the fee to file 

upon a favorable wants to update the an additional form. 

motion to reopen, dates of intended 

motion to reconsider, employment. This DHS/USCISor appeal. change may increase □ None 

the number ofRFE's; 

however, it may save 

petitioners from having 

to file another H-lB 

petition and USCIS 

from having to intake 

and adjudicate another 

petition. 

□ Reduced cost of filing 

new petition. 

DHS/USCIS-

□ None 

□ DHS proposes to Quantitative: Quantitative: 

revise the requirements Petitioners - Petitioners -

to qualify for H-lB cap □ None □ None 

exemption when a 

beneficiary is not 

directly employed by a DHS/USCIS - DHS/USCIS -

6. H-lB Cap Exemptions qualifying institution, □ None □ None 

organization, or entity. 

□ DHS also proposes to Qualitative: Qualitative: 

revise the definition of Petitioners - Petitioners -

"nonprofit research □ Some petitioners may □ These petitioners may 

organization" and see a transfer of $10 benefrtbecausethey 
72918 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 


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"governmental from no longer may no longer have to 

research organization." registering. Additional submit a registration 

cost savings on for a cap-subject 

ACWIAfees petition and potentially 

associated with initial have greater access to 

cap-subject petitions high skilled talent. 

are possible. □ Increase in population 

of petitioners eligible 

for cap exemption. 

DHS/USCIS-

□ DHS will likely 

receive fewer DHS/USCISregistrations for H-lB □ None 

cap-subject petitioners; 

therefore, will likely 

receive less fees for H1B registrations. 

□ Under current Quantitative: Quantitative: 

regulations, the Petitioners - Petitioners -

automatic cap-gap □ None □ None 

extension is valid only 

until October 1 of the 

fiscal year for which DHS/USCIS - DHS/USCIS -

H-lB status is being □ None □ None 

requested. 

Qualitative: Qualitative: 

Students- Petitioners -

□ None □ This change may 

benefit petitioners and 

DHS/USCIS- students, as the 

7. Automatic Extension of □ None automatic extension 

end date from October 

Authorized Employment 1 to April 1 of the 

"Cap-Gap" relevant fiscal year 

would avoid 

disruptions in 

employment 

authorization that some 

F-1 nonimmigrants 

seeking cap-gap 

extensions have 

experienced over the 

past several years. 

DHS/USCIS-

□ None 

8. Start Date Flexibility for □ DHS proposes to Quantitative: Quantitative: 

Certain Cap-Subject H-lB eliminate all the text Petitioners - Petitioners -

Petitions currently at 8 CFR □ None □ None 

2 l 4.2(h)(8)(iii)(A)( 4), 
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which relates to a DHS/USCIS -

limitation on the n None DHS/USCTS -

requested start date. □ None 

Qualitative: 

Petitioners -

□ This proposed change Qualitative: 

is also a potential cost Petitioners -

savings to petitioners □ Reduced confusion 

who, in the event regarding which start 

USCIS cap-subject date they must put on 

petitions that were an H-lB petition. 

rejected solely due to 

start date, would no DHS/USCISlonger need to re- □ None 

submit their petition(s). 

DHS/USCIS-

□ None 

□ Due to changes in the Quantitative: Quantitative: 

instructions, adding Petitioners - Petitioners -

clarifying language □ DHS estimates that the □ None 

regarding the denial or additional time to 

revocation of approved complete and submit 

H-lB petitions, adding the H-lB registration DHS/USCIS -

information collection would cost $3,001,285 □ None 

elements related to the ammally. beneficiary-centric 

9. Additional Time Burden for registration selection DHS/USCIS - Qualitative: 

the H-lB Registration option, namely the □ None Petitioners -

System collection of passport □ None 

information and related 

instructional language, Qualitative: DHS/USCISand adding verification Petitioners - □ None 

before submitting □ None instructions, this 

proposed rule would 

increase the burden per DHS/USCISresponse by 5 minutes. □ None 

□ Under the new Quantitative: Quantitative: 

proposal, each unique Petitioners - Petitioners -

individual who has a □ DHS estimates the □ None 

registration submitted total annual cost 

on their behalf would savings to petitioners 

10. Beneficiary Centric be entered into the would be $3,840,822 DHS/USCIS -

Selection selection process once, for the registrants cost □ None 

regardless of the of time. 

number of registrations □ DHS estimates that 

filed on their behalf. there will be 73,501 Qualitative: 

By selecting by a fewer registrations due Petitioners/Beneficiaries -

unique beneficiary, to this change, □ DHS believes that 

DHS would better resulting in a $735,010 changing how USCIS 
72920 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 


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ensure that each cost savings to conducts the selection 

individual has the same petitioners based on process to select by 

chance of being those petitioners no unique beneficiaries 

selected, regardless of longer needing to pay instead of registrations how many registrations the $10 registration 

were submitted on fee. would give each 

their behalf. unique beneficiary an 

equal chance at 

DHS/USCIS- selection and would 

□ None reduce the advantage 

that beneficiaries with 

Qualitative: multiple registrations 

Petitioners - submitted on their 

□ None behalf have over 

beneficiaries with a 

single registration 

DHS/USCIS- submitted on their □ None behalf. 

DHS/USCIS-

□ None 

J DHS is proposing to Quantitative: Quantitative: 

preclude the Petitioners - Petitioners -

submission of multiple □ None □ None 

H-lB cap-subject 

registrations by related DHS/USCIS -

entities for the same DHS/USCIS- □ None 

beneficiary unless the □ None 

related registrants can Qualitative: 

establish a legitimate Petitioners -

business need for Qualitative: □ This would benefit the 

11. Bar on Multiple submitting multiple Petitioners - petitioners during the 

cap-subject □ None years that the Registrations Submitted by registrations for the 

Related Entities same beneficiary. registration process is 

DHS/USCIS- suspended, and the 

□ None beneficiary centric 

process would not be in 

place to support the 

petitioners. 

DHS/USCIS-

□ This would also lead to 

improved program 

integrity for USCIS. 

12. Registrations with False J DHS proposes to Quantitative: Quantitative: 

Information or that are codify its authority to Petitioners - Petitioners -

Otherwise Invalid deny or revoke a □ None □ None 

petition on the basis 

that the statement of DHS/USCIS- DHS/USCIS -

facts on the underlying □ None □ None 

registration was not 
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true and correct, or was Qualitative: Qualitative: 

inaccurate, fraudulent, Petitioners - Petitioners -

or misrepresented a □ DHS anticipates that □ None 

material fact. USCIS adjudicators 

may issue more RFEs DHS/USCISand NOIDs related to □ This would lead to 

registrations with false improved program 

informationunderthis integrity for USCIS. 

proposed rule, which 

would increase the 

burden on petitioners 

and adjudicators. 

□ USCIS may deny or 

revoke the approval of 

any petition filed for 

the beneficiary based 

on those registrations 

with false information. 

DHS/USCIS-

□ DHS would need to 

spend time issuing 

RFEs and NOIDs with 

false information 

13. Provisions to Ensure Bona □ DHS proposes to Quantitative: Quantitative: 

Fide Job Offer for a codify USCIS' Petitioners - Petitioners -

Specialty Occupation authority to request □ None □ None 

Position contracts, work orders, 

or similar evidence. DHS/USCIS- DHS/USCIS -

□ None □ None 

Qualitative: Qualitative: 

Petitioners - Petitioners -

□ No Action Baseline: □ No Action Baseline: 

None There maybe 

transparency benefits 

□ Pre-Policy Baseline: due to this proposed 

Petitioners may have change. 

taken time to find 

contracts or legal □ Pre-Policy Baseline: 

agreements, if None 

available, or other 

evidence including DHS/USCIStechnical □ None 

documentation, 

milestone tables, or 

statements of work. 

DHS/USCIS-

□ None 
72922 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 


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14. Beneficiary-Owners □ DHS proposes to Quantitative: Quantitative: 

codify a petitioner's Petitioners - Petitioners -

ability to qualify as a □ None □ None 

U.S. employer even 

when the beneficiary DHS/USCIS- DHS/USCIS -

possesses a controlling □ None □ None 

interest in that 

petitioner. Qualitative: Qualitative: 

Petitioners - Petitioners -

□ None □ This proposed change 

may benefit H-lB 

DHS/USCIS- petitions for □ None entrepreneurs, start-up 

entities, and other 

beneficiary-owned 

businesses. 

DHS/USCIS-

□ None 

15. Site Visits □ DHS is proposing to Quantitative: Quantitative: 

add regulations Petitioners - Petitioners -

specific to the H -lB □ Failure to cooperate □ None 

program to codify its during site visits or 

existing authority to other compliance 

conduct site visits and reviews may result in DHS/USCIS -

clarify the scope of denial or revocation of □ None 

inspections and the any petition for 

consequences of a workers performing 

petitioner's or third services at the location Qualitative: 

party's refusal or or locations that are a Petitioners -

failure to fully subject of inspection or □ None 

cooperate with these compliance review. 

inspections. Such action, in turn, DHS/USCISmay result in □ A benefit is that USCIS 

opportunity costs of would have clearer 

time to provide authority to deny or 

information to USCIS revoke a petition if 

during these unable to verify 

compliance reviews information related to 

and inspections. On the petition. 

average, USCIS site □ Existing USCIS 

visits last 1. 08 hours, enforcement activities 

which is a reasonable would be more 

estimate for the effective by additional 

marginal time that a cooperation from 

petitioner may need to employers. 

spend in order to 

comply with a site 

visit. 

□ Employers that do not 

cooperate would face 

denial or revocation of 

their petition(s), which 

could result in costs to 

those businesses. 
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□ DHS obtains the total 

annual cost of the H1B worksite 

inspections to be 

$674,881 for the 

proposed rule. 

DHS/USCIS-

□ None 

Qualitative: 

Petitioners -

□ None 

DHS/USCIS-

□ None 

16. Third-party placement □ In this proposed Quantitative: Quantitative: 

(Codifying Defensor) provision, when the Petitioners - Petitioners -

beneficiary will be □ None □ None 

staffed to a third party, 

USCIS would look at 

the third party's DHS/USCIS- DHS/USCIS -

requirements for the □ None □ None 

beneficiary's position, 

rather than the 

petitioner's stated Qualitative: Qualitative: 

requirements, in Petitioners - Petitioners -

assessing whether the □ No Action Baseline: □ No Action Baseline: 

proffered position None There maybe 

qualifies as a specialty transparency benefits 

occupation. □ Pre-Policy Baseline: due to this proposed 

Petitioners may have change. This provision 

taken time to will improve program 

demonstrate that the integrity. 

worker will perform 

services in a specialty □ Pre-Policy Baseline: 

occupation, which None 

requires theoretical and 

practical application of DHS/USCISa body of highly □ None 

specialized knowledge 

and attainment of a 

baccalaureate or higher 

degree in the specific 

specialty. 

DHS/USCIS-

□ None 

17. Additional Time Burden for □ This proposed rule Quantitative: Quantitative: 

Form 1-129 H-lB would increase the Petitioners - Petitioners -

burden per response by □ DHS estimates that the □ None 

5 minutes Due to time to complete and 
72924 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

167OMB, Circular A–4 (Sept. 17, 2003), https://

www.whitehouse.gov/wp-content/uploads/legacy_

drupal_files/omb/circulars/A4/a-4.pdf (last viewed 

June 1, 2021). 

Inaddition to the impacts summarized 

above, and as required by OMB Circular 

A–4, Table 13 presents the prepared 

accounting statement showing the costs 

and benefits that would result if this 

proposed rule is finalized.167


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changes in the submit Form 1-129 Hinstructions, adding 1B would cost DHS/USCIS -

clarifying language $4,578,144 annually. □ None 

regarding the denial or 

revocation of approved DHS/USCISH-lB petitions, adding □ None Qualitative: 

information collection Petitioners -

elements related to the Qualitative: □ None 

beneficiary-centric Petitioners - registration selection □ None DHS/USCISoption, namely the □ None 

collection of passport 

information and related DHS/USCISinstructional language, □ None 

and adding verification 

before submitting 

instructions. 

18. Additional Time Burden for □ This proposed rule Quantitative: Quantitative: 

H Classification Supplement would increase the Petitioners - Petitioners -

toForml-129 burden per response 5 □ DHS estimates that the □ None 

minutes. Due to time to complete and 

changes in the submit Form 1-129 Hinstructions, adding 1B H Classification DHS/USCIS -

clarifying language would cost $4,005,877 □ None 

regarding the denial or annually. revocation of approved 

H-lB petitions, adding DHS/USCIS- Qualitative: 

information collection □ None Petitioners -

elements related to the □ None 

beneficiary-centric 

registration selection Qualitative: DHS/USCISoption, namely the Petitioners - □ None 

collection of passport □ None information and related 

instructional language, 

and adding verification DHS/USCIS- before submitting □ None instructions. 
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Table 13. 0MB A-4 Accounting Statement ($ millions, FY 2021) 

Time Period: FY 2022 throu!!h FY 2031 

Category Primary Estimate Minimum Maximum Estimate Source 

Estimate Citation 

BENEFITS 

Regulatory 

Monetized Benefits NIA Impact 

Analysis 

(RIA) 

Annualized quantified, 

but unmonetized, NIA NIA NIA RIA 

benefits 

The pmpose of the changes in this proposed rule is to ensure that petitioners may 

have clarity and may reduce the amount of redundant work for each beneficiary. 

DHS anticipates that codifying and providing clarification of the requirements for 

maintenance of status applications would at least render some RFEs and NO IDs 

Unquantified Benefits unnecessary; therefore, may save the petitioner's time. In addition, these changes RIA would improve the integrity of the H-lB program by preventing certain abuses. 

DHS is also proposing to change the automatic extension end date from October 1 to 

April 1 of the relevant fiscal year to avoid disruptions in employment authorization 

that some F-1 nonimmigrants seeking cap-gap extensions have been experiencing 

over the past several years. 

COSTS 

Annualized monetized 

costs (7%) $6.3 

Annualized monetized RIA 

costs (3%) $6.3 

Annualized quantified, NIA but unmonetized, costs 

DHS anticipates that USCIS adjudicators may issue more RFEs and NOIDs related 

to registrations with false information under this proposed rule, which would 

increase the burden on petitioners and adjudicators. Changes to the site visit 

provision may affect employers who do not cooperate with site visits who would 

face denial or revocation of their petition(s ), which could result in costs to those 

Qualitative businesses. Petitioners may face financial losses because they may lose access to 

(unquantified)costs labor for extended periods, which could result in too few workers, loss of revenue, RIA and some could go out of business. DHS expects program participants to comply 

with program requirements, however, and notes that those that do not could 

experience significant impacts due to this proposed rule. DHS ex-pects that the 

proposed rule would hold certain petitioners more accountable for violations, 

including certain findings of labor law and other violations, and would prevent 

registrations with false information from taking a cap number for which they are 

ineligible. 

TRANSFERS 

Annualized monetized NIA transfers (7%) 
72926 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

168See USCIS, ‘‘USCIS Final Guidance on When 

to File an Amended or New H–1B Petition After 

Matter of Simeio Solutions, LLC,’’ PM–602–0120 

(July 21, 2015), https://www.uscis.gov/sites/default/ 

files/document/memos/2015-0721_Simeio_

Solutions_Transition_Guidance_Memo_Format_7_

21_15.pdf. 

BILLING CODE 9111–97–C 

2. Background 

The purpose of this rulemaking is to 

propose changes that DHS believes 

would modernize and improve the 

regulations relating to the H–1B 

program by: (1) streamlining the 

requirements of the H–1B program and 

improving program efficiency; (2) 

providing greater benefits and 

flexibilities for petitioners and 

beneficiaries; and (3) improving 

integrity measures. Some of the 

proposed provisions would narrowly 

impact other nonimmigrant 

classifications. 

3. Costs, Transfers, and Benefits of the 

Proposed Rule 

a. Amended Petitions 

DHS proposes to clarify when an 

amended or new H–1B petition must be 

filed due to a change in an H–1B 

worker’s place of employment. 

Specifically, this rule proposes to clarify 

that any change of work location that 

requires a new LCA is itself considered 

a material change and therefore requires 

the petitioning employer to file an 

amended or new petition with USCIS 

before the H–1B worker may perform 

work under the changed conditions. 

This proposed change would clarify 

requirements for H–1B amended 

petitions by codifying Matter of 

Simeio 168 and incorporating DOL rules 

on when a new LCA is not necessary. 

DHS estimates that this proposed 

change would save petitioners filing 

amended petitions 5 minutes for each 

petition (0.08 hours). 

USCIS received a low of 17,057 

amended petitions in FY 2022, and a 

high of 80,102 amended petitions in FY 

2018. Based on the 5-year annual 

average, DHS estimates that 59,947 

petitioners file for an amended petition 

each year shown in Table 14. DHS does 

not know if all of these amended 

petitions are due to a change in an H– 

1B worker’s place of employment. 

Because of this, DHS cannot estimate 

how many of these new and amended 

petitions would benefit by consolidating 

existing requirements and providing 

clearer regulatory text pertaining to 

when a petitioner must submit an 

amended or new petition. 


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Annualized monetized 

transfers (3%) NIA 

From whom to whom? 

From whom to whom? 

Miscellaneous Effects Source 

Analvses/Cat(!f!orv Citation 

Effects on State, local, None RIA 

or tribal governments 

Effects on small None RIA businesses 

Effects on wages None None 

Effects on growth None None 

Table 14. Form 1-129 H-lB Classification Amended Petitions, Petition for a Nonimmigrant 

Worker, FY 2018 through FY 2022 

Form 1-129 H-lB Form 1-129 H-lB Percentage of 

Fiscal Year Receipts Receipts Total Form 1-129 H-lB 

Received without Received with filed with Form 

Form G-28 Form G-28 G-28 

2018 27,258 52,844 80,102 66% 

2019 17,038 47,358 64,396 74% 

2020 21,082 51,481 72,563 71% 

2021 19,128 46,488 65,616 71% 

2022 4,120 12,937 17,057 76% 

5-vear Total 88,626 211,108 299,734 70% 

5-year Annual 17,725 42,222 59,947 70% Average 

Source: USCIS, Office of Policy and Strategy, Policy Research Division (PRD), CLAIMS3 and ELIS 

databases, Mar. 13, 2023. 
Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 72927 

169See USCIS, ‘‘Deference to Prior 

Determinations of Eligibility in Requests for 

Extensions of Petition Validity, Policy Alert,’’ PA– 

2021–05 (April 27, 2021), https://www.uscis.gov/ 

sites/default/files/document/policy-manualupdates/20210427-Deference.pdf (last visited on 

Mar. 23, 2023). 

DHS conducted a sensitivity analysis 

to estimate the number of petitions that 

may benefit from this proposed change. 

Table 15 presents the lower and upper 

bound number of petitions filed 

annually for amended petitions and for 

new petitions, which corresponds to a 

range of 10 to 90 percent. 

Using the lower and upper bounds of 

the estimated annual population for the 

petitioners who would file amended 

petitions, DHS estimates the cost 

savings based on the opportunity cost of 

time of gathering and submitting 

information by multiplying the 

estimated time burden savings for those 

filing an amended petition (5 minutes or 

0.08 hours) by the compensation rate of 

an HR specialist, in-house lawyer, or 

outsourced lawyer, respectively. DHS 

does not know the exact number of 

petitioners who will choose an in-house 

or an outsourced lawyer but assumes it 

may be a 50/50 split and therefore 

provides an average. Table 16 shows 

that the total annual cost savings would 

range from $59,545 to $535,801. DHS 

estimates the total cost savings to be the 

average between the lower bound and 

the upper bound estimates. Based on 

this DHS estimates the average cost 

savings from this provision to be 

$297,673. 

BILLING CODE 9111–97–P 

BILLING CODE 9111–97–C 

b. Deference to Prior USCIS 

Determinations of Eligibility in Requests 

for Extensions of Petition Validity 

DHS seeks to codify and clarify its 

existing deference policy at proposed 8 

CFR 214.1(c)(5). Deference has helped 

promote consistency and efficiency for 

both USCIS and its stakeholders. The 

deference policy instructs officers to 

consider prior determinations involving 

the same parties and facts, when there 

is no material error with the prior 

determination, no material change in 

circumstances or in eligibility, and no 

new material information adversely 

impacting the petitioner’s, applicant’s, 

or beneficiary’s eligibility. This 

provision proposes to codify the 

deference policy169 dated April 27, 

2021. Relative to the no action baseline 

there are no costs to the public. The 

benefit of codifying this policy is that 


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Table 15. Estimated Annual Number of Form 1-129 H-lB Petitions that Are New or Amended 

I Petitioners I Lower Bound (10%) I UooerBound (90%) 

Estimated Annual Amended Petitions I 59.947 I 5 995 I 53.952 

Source: USCIS analysis 

Table 16. Estimated Cost Savin2s to Form 1-129 H-lB Petitioners 

Time 

Affected Burde Compensation Total Annual 

Population n Rate Cost (Hours 

) 

A B C D=AxBxC 

Lower Bound 

Estimated Number of Petitions 

(Lower Bound) 

HR specialist 1,799 0.08 $50.94 $7,331 

In-house lawver 4,197 0.08 $114.17 $38,334 

Outsourced lawyer 4,197 0.08 $196.85 $66,094 

Total - Lower Bound 5,996 $59,545 

Unner Bound 

Estimated Number of Petitions 

(Upper Bound) 

HR specialist 16,186 0.08 $50.94 $65,961 

In-house lawyer 37,766 0.08 $114.17 $344,940* 

Outsourced lawver 37,766 0.08 $196.85 $594,739* 

Total - Upper Bound 53,952 $535,801 

Total Cost Savings Average $297,673 

Source: USCIS analysis 

*Note: DHS does not know the exact number of petitioners who will choose an in-house or an 

outsourced lawyer but assumes it may be a 50/50 split and therefore provides an average. 
72928 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

there may be some transparency benefits 

to having the policy in the CFR so the 

public has the requirements in one 

place. Relative to a pre-policy baseline 

petitioners may need to take time to 

familiarize themselves with those 

changes made in the 2021 deference 

policy memo. The provision applies to 

all nonimmigrant classifications for 

which form I–129 is filed to request an 

extension of stay (i.e., E–1, E–2, E–3, H– 

1B, H–1B1, H–2A, H–2B, H–3, L–1, O– 

1, O–2, P–1, P–1S, P–2, P–2S, P–3, P– 

3S, Q–1, R–1, and TN nonimmigrant 

classifications). The deference policy 

had been in effect since 2004 but was 

rescinded in 2017. After USCIS 

rescinded deference in 2017, the 

number of RFEs and denials increased. 

Table 17 shows the number for Form 

I–129 RFEs filed for an extension of stay 

or amendment of stay, who are applying 

for a continuation of previously 

approved employment or a change in 

previously approved employment from 

FY 2018 through FY 2022. USCIS 

received a low of 13,467 RFEs for Form 

I–129 classifications in FY 2022, and a 

high of 43,430 RFEs for Form I–129 

classifications in FY 2020. Based on a 5- 

year annual average, 31,327 petitioners 

who filed for an extension of stay or 

amendment of stay, who are applying 

for a continuation of previously 

approved employment or a change in 

previously approved employment 

receive an RFE for Form I–129 per year. 

DHS is proposing to codify the 

deference policy that applies to the 

adjudication of a petition. This 

proposed change could affect the 

number of RFEs that USCIS sends for 

Form I–129. USCIS estimates that there 

may be a reduction in RFEs, as officers 

adjudicating a Form I–129 involving the 

same parties and the same underlying 

facts would not need to re-adjudicate 

eligibility. The reduction in RFEs may 

save time and make the overall process 

faster for petitioners and USCIS. 

Table 18 shows the number of Form 

I–129 receipts, submitted concurrently 

with a Form G–28, filed for a 

continuation of previously approved 

employment or a change in previously 

approved employment, and requesting 

an extension of stay or amendment of 

stay, on which USCIS issued an RFE. 

Based on the 5-year annual average, 

DHS estimates that 23,475 petitioners 

who received an RFE filed with a Form 

G–28 and 7,853 petitioners who 

received an RFE filed without a Form 

G–28. 

BILLING CODE 9111–97–P 


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Table 17. Total Form 1-129 Receipts Filed for an Extension of Stay or Amendment of Stay, Who 

Are Applying for a Continuation of Previously Approved Employment or a Change in Previously 

Aooroved Employment, FY 2018 Through FY 2022 

Reported Fiscal RFE Count Non-RFE Count Total Year 

2018 34,202 114,425 148,627 

2019 42,097 122,457 164,554 

2020 43,430 142,622 186,052 

2021 23,440 138,952 162,392 

2022 13,467 126,767 140,234 

5-vear Total 156,636 645,223 801,859 

5-year Annual 31,327 129,045 160,372 Average 

Source: USCIS, Office of Policy and Strategy, PRD, CLAIMS3 and ELIS databases, Mar. 13, 2023. 

Table 18. Form 1-129, Petition for a Nonimmigrant Worker Receipts Filed for an Extension of 

Stay or Amendment of Stay, Who Are Applying for a Continuation of Previously Approved 

Employment or a Change in Previously Approved Employment, with an RFE Submitted 

Concurrently with Form G-28, FY 2018 Through FY 2022 

Fiscal Form 1-129 Form 1-129 Total Form 1-129 Percentage of 

Year Receipts Received Receipts Received Receipts Received Form 1-129 filed 

without Form G-28 with Form G-28 withRFE with Form G-28 

2018 10.512 23 690 34 202 69% 

2019 13,450 28 647 42 097 68% 

2020 9 131 34 299 43 430 79% 

2021 3 888 19 552 23 440 83% 

2022 2 282 11185 13 467 83% 

5-year 39,263 117,373 156,636 75% Total 

5-year 

Annual 7,853 23,475 31,327 75% 

Avera2e 

Source: USCIS Office of Policy and Strategy PRD CLAIMS3 and ELIS databases Mar. 13 2023. 
Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 72929 

DHS conducted a sensitivity analysis 

to estimate the number of petitions that 

may benefit from codifying and 

clarifying its existing deference policy. 

Table 19 presents the lower and upper 

bound number of petitions filed 

annually for amended petitions and for 

new petitions, which corresponds to a 

range of 10 to 90 percent. 

Using the lower and upper bounds of 

the estimated annual population for the 

petitioners who may no longer have to 

provide duplicative data, DHS estimates 

the cost savings based on the 

opportunity cost of time of gathering 

and submitting duplicative information 

by multiplying the estimated time 

burden to gather information 10 minutes 

(0.167 hours) by the compensation rate 

of an HR specialist, in-house lawyer, or 

outsourced lawyer, respectively. DHS 

does not know the exact number of 

petitioners who will choose an in-house 

or an outsourced lawyer but assumes it 

may be a 50/50 split and therefore 

provides an average. Table 20 shows 

that the total annual cost savings due to 

the codifying and clarifying its existing 

deference policy would range from 

$67,691 to $609,132. DHS estimates the 

total cost savings to be the average 

between the lower bound and the upper 

bound estimates. Based on this DHS 

estimates the average cost savings from 

this provision to be $338,412. 

BILLING CODE 9111–97–C 

c. Evidence of Maintenance of Status 

DHS seeks to clarify current 

requirements and codify current 

practices concerning evidence of 

maintenance of status at proposed 8 

CFR 214.1(c)(1) through (7). Primarily, 

DHS seeks to clarify that evidence of 

maintenance of status is required for 

petitions where there is a request to 

extend or amend the beneficiary’s stay. 

This proposed change would list 

examples of additional evidence types 

that petitioners may provide, but would 

not limit petitioners to those specific 

evidence types. The proposed form 

instructions further state that if the 

beneficiary is employed in the United 

States, the petitioner may submit copies 

of the beneficiary’s last two pay stubs, 

Form W–2, and other relevant evidence, 

as well as a copy of the beneficiary’s 

Form I–94, passport, travel document, 

or Form I–797. This proposed change 

may decrease the number of RFEs and 

NOIDs by clearly stating what types of 

supporting documentation are relevant 

and clarifying that petitioners should 

submit such supporting documentation 

upfront, rather than waiting for USCIS 

to issue a request for additional 

information. This may benefit 

petitioners by saving them the time to 

review and respond to RFEs and NOIDs. 

DHS is proposing to codify into 

regulation the instructions that, when 

seeking an extension of stay, the 

applicant or petitioner must submit 

supporting evidence to establish that the 


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Table 19. Estimated Number of Form 1-129 Petitions with RFEs 

I Petitioners I Lower Bound (10%) I Unner Bound (90%) 

Estimated RFE Petitions I 31,327 I 3 133 I 28 194 

Source: USCIS analysis 

Table 20. Estimated Cost Savings to Form 1-129 Petitioners due to Codifying and Clarifying the 

Deference Policv 

Affected Time Burden Compensation Total 

Annual Population (Hours) Rate Cost 

A B C D=AxBxC 

Lower Bound 

Estimated Number of Petitions 

(Lower Bound) 

HR specialist 783 0.167 $50.94 $6 661 

In-house lawver 2 350 0.167 $114.17 $44 806 

Outsourced lawyer 2 350 0.167 $196.85 $77 254 

Total - Lower Bound 3 133 $67,691 

Unner Bound 

Estimated Number of Petitions 

(Upper Bound) 

HR specialist 7 049 0.167 $50.94 $59 966 

In-house lawyer 21,146 0.167 $114.17 $403 178* 

Outsourced lawver 21.146 0.167 $196.85 $695 153* 

Total - Upper Bound 28,195 $609,132 

Total Cost Savin2s Avera2e $338,412 

Source: USCIS analysis 

* Note: DHS does not know the exact number of petitioners who will choose an in-house or an 

outsourced lawyer but assumes it may be a 50/50 split and therefore provides an average. 
72930 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

170See proposed 8 CFR 214.2(h)(14). See also 

proposed 8 CFR 214.2(l)(14)(i) (removing ‘‘Except in 

those petitions involving new offices, supporting 

documentation is not required, unless requested by 

the director.’’); proposed 8 CFR 214.2(o)(11) and 

(p)(13) (removing ‘‘Supporting documents are not 

required unless requested by the Director.’’). 

applicant or beneficiary maintained the 

previously accorded nonimmigrant 

status before the extension request was 

filed. Additionally, DHS is proposing to 

remove the sentence: ‘‘Supporting 

evidence is not required unless 

requested by the director.’’ 170 DHS 

expects that these proposed changes 

would reduce confusion for applicants 

and petitioners, clarify what evidence is 

required for all extension of stay 

requests, and simplify adjudications by 

decreasing the need for RFEs and 

NOIDs. 

Based on the 5-year annual average, 

DHS estimates that 299,025 Form I–129 

petitions are filed requesting an 

extension of stay. Of those total filed 

petitions, DHS estimates that 61,781 

petitioners who requested an extension 

of stay received an RFE and the 

remaining 237,244 did not receive and 

RFE as shown in Table 21. 

DHS estimates that 29,195 petitions 

are filed requesting to amend the stay. 

Of those, DHS estimates that 9,723 

petitions that are filed requesting to 

amend the stay receive an RFE and 

19,473 do not receive an RFE. 

DHS estimates that 89,241 petitions 

are filed requesting to change status and 

extend the stay. Of those, DHS estimates 

that 30,318 petitions that are filed 

requesting to change status and extend 

the stay receive an RFE and 58,922 do 

not receive an RFE. 


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Table 21. Form 1-129 Extension of Stay, Petition for a Nonimmigrant Worker, FY 2018 through 

FY 2022 

Fiscal Year RFE Count Non-RFE Count Total 

2018 85,849 187,662 273,511 

2019 83,454 199,477 282,931 

2020 71,804 247,953 319,757 

2021 40,990 270,396 311,386 

2022 26,806 280,732 307,538 

5-year Total 308,903 1,186,220 1,495,123 

5-year Annual Average 61,781 237,244 299,025 

Source: USCIS, Office of Policy and Strategy, PRD, CLAIMS3 and ELIS databases, Mar. 13, 2023. 

Table 22. Form 1-129 Amend the Stay, Petition for a Nonimmigrant Worker, FY 2018 through FY 

2022 

Fiscal Year RFE Count Non-RFE Count Total 

2018 21,617 16,328 37,945 

2019 14,625 16,939 31,564 

2020 7,235 20,056 27,291 

2021 2,824 20,351 23,175 

2022 2,312 23,690 26,002 

5-year Total 48,613 97,364 145,977 

5-year Annual Average 9,723 19,473 29,195 

Source: USCIS, Office of Policy and Strategy, PRD, CLAIMS3 and ELIS databases, Mar. 13, 2023. 
Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 72931 

171The regulations state that when an RFE is 

served by mail, the response is timely filed if it is 

received no more than 3 days after the deadline, 

providing a total of 87 days for a response to be 

submitted if USCIS provides the maximum period 

of 84 days under the regulations. The maximum 

response time for a NOID is 30 days. See https:// 

www.uscis.gov/policy-manual/volume-1-part-echapter-6. 

It is important to note that issuing 

RFEs and NOIDs takes time and effort 

for adjudicators—to send, receive, and 

adjudicate documentation—and it 

requires additional time and effort for 

applicants or petitioners to respond, 

resulting in extended timelines for 

adjudications.171 Data on RFEs and 

NOIDs related to maintenance of status 

are not standardized or tracked in a 

consistent way, thus they are not very 

accurate or reliable. Within this context, 

the data can provide some insight, 

however minimal, that these requests 

and notices have been present and that 

they continue to occur. 

DHS anticipates that USCIS 

adjudicators may issue fewer RFEs and 

NOIDs related to maintenance of status 

under this proposed rule due to clarity 

of what types of supporting 

documentation are relevant and 

clarification that petitioners should 

submit such supporting documentation 

upfront, rather than waiting for USCIS 

to issue a request for additional 

information, which would reduce the 

burden on applicants, petitioners, and 

adjudicators, and save time processing 

applications and petitions. Because the 

data are not standardized or tracked 

consistently DHS cannot estimate how 

many RFEs and NOIDs are related to 

maintenance of status. 

d. Eliminating the Itinerary Requirement 

for H Programs 

DHS is proposing to eliminate the H 

programs’ itinerary requirement. See 

proposed 8 CFR 214.2(h)(2)(i)(B) and 

(F). Current 8 CFR 214.2(h)(2)(i)(B) 

states that ‘‘A petition that requires 

services to be performed or training to 

be received in more than one location 

must include an itinerary with the dates 

and locations of the services or training 

and must be filed with USCIS as 

provided in the form instructions.’’ In 

addition, current 8 CFR 214.2(h)(2)(i)(F) 

contains additional language requiring 

an itinerary for H petitions filed by 

agents as the petitioner. 

DHS recognizes this change may 

affect H–1B petitioners filing for 

beneficiaries performing services in 

more than one location and submitting 

itineraries. However, due to the absence 

of detailed data on petitioners 

submitting itineraries, DHS estimates 

the affected population as the estimated 

number of petitions filed annually for 

workers placed at off-site locations. DHS 

assumes the petitions filed for workers 

placed at off-site locations are likely to 

indicate that beneficiaries may be 

performing services at multiple 

locations and, therefore, petitioners are 

likely to submit itineraries. Eliminating 

the itinerary requirement would reduce 

petitioner burden and promote more 

efficient adjudications, without 

compromising program integrity. This 

proposed change may benefit petitioners 

who have beneficiaries at alternative 

worksites. 

Table 24 shows the total number of 

Form I–129 H–1B Receipts with and 

without Form G–28, FY 2018 through 

FY 2022. USCIS received a low of 

398,285 Form I–129 H–1B Receipts in 

FY 2021, and a high of 474,311 Form I– 

129 H–1B Receipts in FY 2022. Based 

on the 5-year annual average, DHS 

estimates that there are 427,822 Form I– 

129 H–1B petitioners each year. 


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Table 23. Form 1-129 Petition for a Nonimmigrant Worker Requesting New Employment with a 

COS, FY 2018 throu2h FY 2022 

Fiscal Year RFE Count Non-RFE Count Total 

2018 48,884 45,343 94,227 

2019 44,096 50,879 94,975 

2020 23,943 65,958 89,901 

2021 18,354 61,641 79,995 

2022 16,315 70,790 87,105 

5-year Total 151,592 294,611 446,203 

5-year Annual Average 30,318 58,922 89,241 

Source: USCIS, Office of Policy and Strategy, PRD, CLAIMS3 and ELIS databases, Mar. 13, 2023. 
72932 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

172 DHS uses the proportion of petitions approved 

for off-site workers (31 percent from Table 25) as 

an approximate measure to estimate the number of 

petitions received annually for off-site workers from 

the total number of petitions filed. 132,625 petitions 

filed requesting off-site workers = 427,822 petitions 

filed annually × 31 percent. 

Table 25 shows the average number of 

Form I–129 H–1B petitions approved in 

FYs 2018–22 for workers placed at offsite locations. Nearly 31 percent of 

petitions were approved for workers 

placed at off-site locations. DHS uses 

the estimated 31 percent as the 

proportion of both the population of 

received petitions and the population of 

approved petitions that are for workers 

placed at off-site locations. 

DHS conducted a sensitivity analysis 

to estimate the number of H–1B 

petitions filed annually for workers 

placed at off-site locations that may 

contain itineraries (132,625).172 Table 

26 presents the lower and upper bound 

number of petitions filed annually for 

workers placed at off-site locations who 

may submit itineraries, which 

corresponds to a range of 10 to 90 

percent. 

Using the lower and upper bounds of 

the estimated annual population for H– 

1B petitioners who may no longer be 

required to gather and submit itinerary 

information, DHS estimates the cost 

savings based on the opportunity cost of 

time of gathering and submitting 

itinerary information by multiplying the 

estimated time burden to gather 


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Table 24. Total Form 1-129 H-lB Receipts with and without Form G-28, FY 2018 through FY 

2022 

Form 1-129 H-lB Percentage 

Form 1-129 H-lB Receipts Total Form I- of Form IFY Receipts Received Received with 129 H-lB 129 H-lB 

without Form G-28 Form G-28 Receipts filed with 

Form G-28 

2018 94 055 324 549 418,604 78% 

2019 90 845 329 777 420,622 78% 

2020 90 192 337 097 427,289 79% 

2021 79 195 319 090 398,285 80% 

2022 90 574 383 737 474,311 81% 

5-vear Total 444,861 1,694,250 2,139,111 79% 

5-year Annual 88,972 338,850 427,822 79% Average 

Source: USCIS Office of Policv and Strategy PRD CLAIMS3 and ELIS databases Mar. 13 2023. 

Table 25. Form 1-129 H-lB Petitions for Workers Placed at Off-site Locations, FY 2018 through 

FY 2022 

Total Approved 

FY Petitions for 

Workers Placed at Total Approved Percent Placed at OffOff-site locations Petitions site locations 

2018 108,981 289,142 38% 

2019 118,948 332,384 36% 

2020 138,229 363,428 38% 

2021 99,974 356,046 28% 

2022 73,176 413,395 18% 

5-vear Total 539,308 1,754,395 31% 

5-year Annual Average 107,862 350,879 31% 

Source: USCIS, Office of Policy and Strategy, PRD. April 6, 2023 

Table 26. Estimated Number of Form 1-129 H-lB Petitions Who May Submit Itineraries 

Estimated Number of Petitions Estimated Number of Petitions Submit Itineraries among Workers 

Filed Annually for Workers Placed at Off-site Locations 

Placed at Off-site Locations Lower Bound (10%) Unner Bound (90%) 

A B=Ax10% C=Ax90% 

132,625 13,263 119,363 

Source: USCIS analysis 
Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 72933 

itinerary information (0.08 hours) by the 

compensation rate of an HR specialist, 

in-house lawyer, or outsourced lawyer, 

respectively. Table 27 shows that the 

total annual cost savings due to the 

itinerary exemption would range from 

$141,704 to $1,275,277. Since the 

itinerary information normally is 

submitted with the Form I–129 H–1B 

package, there would be no additional 

postage cost savings. DHS estimates the 

total cost savings to be the average 

between the lower bound and the upper 

bound estimates. Based on this DHS 

estimates the average cost savings from 

this provision to be $708,491. 

BILLING CODE 9111–97–P 

BILLING CODE 9111–97–C 

DHS acknowledges the proposal to 

eliminate the itinerary requirement may 

also affect H petitions filed by agents as 

well as H–2 petitions filed for 

beneficiaries performing work in more 

than one location or for multiple 

employers, however, DHS has not 

estimated these cost savings here. 

e. Validity Period Expires Before 

Adjudication 

DHS proposes to allow H–1B petitions 

to be approved or have their requested 

validity period dates extended if USCIS 

adjudicates and deems the petition 

approvable after the initially requested 

validity period end-date, or the period 

for which eligibility has been 

established, has passed. This typically 

would happen if USCIS deemed the 

petition approvable upon a favorable 

motion to reopen, motion to reconsider, 

or appeal. 

If USCIS adjudicates an H–1B petition 

and deems it approvable after the 

initially requested validity period enddate, or the last day for which eligibility 

has been established, USCIS may issue 

an RFE asking whether the petitioner 

wants to update the dates of intended 

employment. This change may increase 

the number of RFE’s; however, it may 

save petitioners from having to file 

another H–1B petition and USCIS from 

having to intake and adjudicate another 

petition. 

If in response to the RFE the 

petitioner confirms that it wants to 

update the dates of intended 

employment and submits a different 

LCA that corresponds to the new 

requested validity dates, even if that 

LCA was certified after the date the H– 

1B petition was filed, and assuming all 

other eligibility criteria are met, USCIS 

would approve the H–1B petition for the 

new requested period or the period for 


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Table 27. Estimated Cost Savings to Form 1-129 H-lB Petitioners due to Not Submitting an 

Itinerary 

Affected Time Burden Compensatio Total Annual 

Population (Hours) nRate Cost 

A B C D=AxBxC 

Lower Bound 

Estimated Number of Petitions 

Submit Itineraries (Lower Bound) 

HR specialist 2,785 0.08 $50.94 $11,349 

In-house lawver 10,478 0.08 $114.17 $95,702 

Outsourced lawver 10.478 0.08 $196.85 $165 008 

Total - Lower Bound 13,263 $141,704 

Unner Bound 

Estimated Number of Petitions 

Submit Itineraries (Unner Bound) 

HR specialist 25,066 0.08 $50.94 $102 149 

In-house lawver 94.297 0.08 $114.17 $861 269 

Outsourced lawver 94,297 0.08 $196.85 $1 484,986 

Total - Unner Bound 119,363 $1,275,277 

Total Cost Savine:s Averae:e $708,491 

Source: USCIS analysis 

HR specialist (2,785) = Total-lower bound (13,263) x Percent of petitions filed by HR specialist (21 %) 

In-house lawyer (10,478) = Total-lower bound (13,263) x Percent of petitions filed by in-house lawyer 

(79%) 

Outsourced lawyer (10,478) = Total-lower bound (13,263) x Percent of petitions filed by outsourced 

lawyer (79%) 

DHS does not know the exact number of petitioners who will choose an in-house or an outsourced 

lawyer but assumes it may be a 50/50 split and therefore provides an average. 

HR specialist (25,066) = Total-upper bound (119,363) x Percent of petitions filed by HR specialist 

(21%) 

In-house lawyer (94,297) =Total-upper bound (119,363) x Percent of petitions filed by in-house 

lawyer (79%) 

Outsourced lawyer (94,297) =Total-upper bound (119,363) x Percent of petitions filed by outsourced 

lawver (79%) 
72934 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

173Calculation: 355,592 registrations * 0.3% = 

1,067 registrations. 174Calculation: 355,592 registrations * 0.8% = 

2,845 registrations. 

175Calculation: 1,067 registrations * $10 

registration fee = $10,670 cost savings. 176Calculation: 2,845 registrations * $10 

registration fee = $28,450 cost savings. 

177See 8 CFR 214.2(f)(5)(iv). 

which eligibility has been established, 

as appropriate, rather than require the 

petitioner to file a new or amended 

petition. Under a no-action baseline, the 

requirement to file an amended or new 

petition results in additional filing costs 

and burden for the petitioner. DHS 

expects that this proposed change 

would save petitioners the difference 

between the opportunity cost of time 

and the fee to file an additional form, 

and the nominal opportunity cost of 

time and expense associated with 

responding to the RFE. This proposed 

change would benefit beneficiaries 

selected under the cap, who would 

retain cap-subject petitions while their 

petition validity dates are extended or 

whose petitions now may be approved 

rather than denied based on this 

technicality. 

f. H–1B Cap Exemptions 

DHS proposes to revise the 

requirements to qualify for H–1B cap 

exemption when a beneficiary is not 

directly employed by a qualifying 

institution, organization, or entity at 8 

CFR 214.2(h)(8)(iii)(F)(4). These 

proposed changes intend to clarify, 

simplify, and modernize eligibility for 

cap-exempt H–1B employment, so that 

they are less restrictive and better reflect 

modern employment relationships. The 

proposed changes also intend to provide 

additional flexibility to petitioners to 

better implement Congress’s intent to 

exempt from the annual H–1B cap 

certain H–1B beneficiaries who are 

employed at a qualifying institution, 

organization, or entity. 

DHS is also proposing to revise 8 CFR 

214.2(h)(19)(iii)(C), which states that a 

nonprofit research organization is an 

entity that is ‘‘primarily engaged in 

basic research and/or applied research,’’ 

and a governmental research 

organization is a Federal, State, or local 

entity ‘‘whose primary mission is the 

performance or promotion of basic 

research and/or applied research.’’ DHS 

proposes to replace ‘‘primarily engaged’’ 

with ‘‘a fundamental activity of’’ in 

order to permit a nonprofit entity that 

conducts research as a fundamental 

activity but is not primarily engaged in 

research to meet the definition of a 

nonprofit research entity. This would 

likely increase the population of 

petitioners who are now eligible for the 

cap exemption and, by extension, would 

likely increase the number of petitions 

that may be cap-exempt. 

These proposed changes would result 

in a transfer to petitioners who qualify 

for a cap exemption for their employees 

under the proposed rule. This would 

reduce transfers for petitioners because 

the petitioners would no longer have to 

pay the registration fee or ACWIA fees 

applicable to initial cap-subject 

petitions. DHS does not have data to 

precisely estimate how many additional 

petitioners would now qualify for these 

cap exemptions, but we welcome public 

comment on this topic to help inform 

analysis in the final rule. This proposed 

change would be a reduction in 

transfers from the petitioners to USCIS 

because USCIS would no longer receive 

these petitioners’ registration fees. There 

would be no change in DHS resources. 

While DHS cannot estimate the precise 

reduction in transfers, DHS estimates 

that a fairly small population, between 

0.3 percent–0.8 percent of annual 

petitioners, may no longer use the H–1B 

registration tool as a result of these new 

exemptions. Using these percentages, 

DHS estimates that approximately 

1,067 173 (0.3 percent) up to 2,845 174

(0.8 percent) registrants would no longer 

pay the $10 registration fee. DHS 

estimates the reduction in transfers from 

registrants to range from $10,670 175 to 

$28,450 176 annually. DHS invites public 

comment on these transfers to cap 

exempt petitioners and the percentage 

of current registrants (prospective 

petitioners who are cap subject) who 

may no longer submit a registration for 

the H–1B cap. While DHS discusses 

these transfers qualitatively in this 

proposal, DHS intends to quantify them 

in the final rule. 

Aside from the reduction in transfers 

from not having to pay the registration 

fee, petitioners that qualify under the 

proposed cap exemptions would also 

benefit from not having to wait for H– 

1B cap season to commence 

employment. This may allow approved 

petitioners to have their H–1B workers 

commence employment earlier, prior to 

the beginning of the fiscal year on 

October 1. 

g. Automatic Extension of Authorized 

Employment ‘‘Cap-Gap’’ 

DHS proposes to extend the automatic 

cap-gap extension at 8 CFR 

214.2(f)(5)(vi). Currently, the automatic 

extension is valid only until October 1 

of the fiscal year for which H–1B status 

is being requested, but DHS proposes to 

extend this until April 1 of the fiscal 

year. See proposed 8 CFR 214.2(f)(5)(vi). 

This change would result in more 

flexibility for both students and USCIS 

and would help to avoid disruption to 

U.S. employers that are lawfully 

employing F–1 students while a 

qualifying H–1B cap-subject petition is 

pending. 

Each year, a number of U.S. 

employers seek to employ F–1 students 

via the H–1B program by requesting a 

COS and filing an H–1B cap petition 

with USCIS. Many F–1 students 

complete a program of study or postcompletion OPT in mid-spring or early 

summer. Per current regulations, after 

completing their program or postcompletion OPT, F–1 students have 60 

days to take the steps necessary to 

maintain legal status or depart the 

United States.177 However, because the 

change to H–1B status cannot occur 

earlier than October 1, an F–1 student 

whose program or post-completion OPT 

expires in mid-spring has two or more 

months following the 60-day period 

before the authorized period of H–1B 

status begins. 

Under current regulations, the 

automatic cap-gap extension is valid 

only until October 1 of the fiscal year for 

which H–1B status is being requested. 

DHS is proposing to change the 

automatic extension end date from 

October 1 to April 1 to avoid 

disruptions in employment 

authorization that some F–1 

nonimmigrants awaiting the change to 

H–1B status have been experiencing 

over the past several years. Table 28 

shows the historical completions 

volumes. Based on the 5-year annual 

average, DHS estimates that 31,834 F–1 

nonimmigrants annually may be able to 

avoid employment disruptions while 

waiting to obtain H–1B status. 

Preventing such employment 

disruptions would also benefit 

employers of F–1 nonimmigrants with 

cap-gap extensions. The change in the 

automatic extension end date may 

benefit petitioners as well. 


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Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 72935 

178 $42.48 Total Employee Compensation per 

hour. See BLS, Economic News Release, ‘‘Employer 

Costs for Employee Compensation—December 

2022,’’ Table 1. ‘‘Employer Costs for Employee 

Compensation by ownership [Dec. 2022],’’ https:// 

www.bls.gov/news.release/archives/ecec_

03172023.htm (last visited Mar. 21, 2023). 

179See, e.g., 8 CFR 214.2(f)(5)(vi)(A) (describing 

cap-gap employment) and (f)(11)(ii)(B) (describing 

OPT and noting that it may be full-time). 

180Calculation: $42.48* 40 hours = $1,699 per 

week * 26 weeks = $44,174 per 6 months. 

181Calculation: $44,174 per 6 months* 318 (1 

percent of 31,834) F–1 students = $14,047,332. 

182Calculation: $44,174 per 6 months* 1,592 (5 

percent of 31,834) F–1 students = $70,325,008. 

This proposed change in the 

automatic extension end date would 

also allow USCIS greater flexibility in 

allocating officer resources to complete 

adjudications without the pressure of 

completing as many COS requests as 

possible before October 1. There are 

additional benefits of this proposed rule 

that have not been captured in the 

summary of costs and benefits of this 

rulemaking. DHS estimates that this 

change would benefit up to 5 percent 

(1,592) of the population (31,834) on an 

annual basis and on the low end 318 (1 

percent); however, F–1 students who are 

beneficiaries of H–1B cap petitions that 

provide cap-gap relief would be able to 

avoid employment disruptions while 

waiting to obtain H–1B status. DHS 

estimates that an F–1 student who is the 

beneficiary of an H–1B cap petition 

makes $42.48 178 per hour in 

compensation. Based on a 40 hour work 

week,179 DHS estimates the potential 

compensation for each F–1 student who 

is the beneficiary of an H–1B cap 

petition to be $44,174 180 for 6 months 

of employment from October 1st to 

April 1st. DHS estimates that this 

potential compensation may be a benefit 

to F–1 students who are seeking a COS 

to a H–1B status. This benefit ranges 

from $14,047,332 181 to $70,325,008 182

annually. In addition, other impacts 

such as payroll taxes and adjustments 

for the value of time have not been 

monetized here, which would reduce 

the monetized benefit of this 

compensation. DHS intends to include 

these impacts in the final rule and 

invites public comment on these 

additional benefits to F–1 students who 

would be the beneficiaries of H–1B 

petitions. 

h. Start Date Flexibility for Certain H– 

1B Cap-Subject Petitions 

DHS proposes to eliminate all the text 

currently at 8 CFR 214.2(h)(8)(iii)(A)(4), 

which relates to a limitation on the 

requested start date, because the current 

regulatory language is ambiguous. The 

removal of this text would provide 

clarity and flexibility to employers with 

regard to the start date listed on H–1B 

cap-subject petitions. This clarity may 

help petitioners by reducing confusion 

as to what start date they have to put on 

the petition. 

In 2020, USCIS implemented the first 

electronic registration process for the FY 

2021 H–1B cap. In that year, and for 

each subsequent fiscal year, prospective 

petitioners seeking to file H–1B capsubject petitions (including for 

beneficiaries eligible for the advanced 

degree exemption) were required to first 

electronically register and pay the 

associated H–1B registration fee for each 

prospective beneficiary. Because of this 

DHS only has data for Cap Year 2021 

through FY 2023. Table 29 shows the 

number of cap-subject registrations 

received and selected by USCIS during 

Cap Year 2021 through FY 2023. Based 

on the 3-year annual average DHS 

estimates that 127,980 registrations are 

selected each year. DHS cannot estimate 

the number of petitioners that would 

benefit from this clarification to the start 

date on their petition. 


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Table 28. Historical Form 1-129 Petitions Seeking Initial H-lB Status for Beneficiaries Who Are in F-1 

Status and Seekin!! a COS to H-lB Pendin!! October 1-Anril 1 Volume. FY 2018 throu!!h FY 2022 

Fiscal Year Pending Petitions October 1-April 1 

2018 41,606 

2019 43,975 

2020 26,967 

2021 23,339 

2022 23,282 

5-vear Total 159,169 

5-vear Annual Average 31,834 

Source: USCIS, OP&S PRD, C3 Mav 4, 2023. 
72936 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

183See ‘‘Registration Requirement for Petitioners 

Seeking To File H–1B Petitions on Behalf of CapSubject Aliens,’’ 84 FR 888 (Jan. 31, 2019). 

184While the initial registration selection process 

has been completed, DHS is unable to determine at 

this time how many total petitions will be 

submitted within the filing period. 

This proposed change is also a 

potential cost savings to petitioners 

who, in the event USCIS cap-subject 

petitions that were rejected solely due to 

start date, would no longer need to resubmit their petition(s). 

i. The H–1B Registration System 

Through issuance of a final rule in 

2019, Registration Requirement for 

Petitioners Seeking To File H–1B 

Petitions on Behalf of Cap-Subject 

Aliens,183 DHS developed a new way to 

administer the H–1B cap selection 

process to streamline processing and 

provide overall cost savings to 

employers seeking to file H–1B capsubject petitions. In 2020, USCIS 

implemented the first electronic 

registration process for the FY 2021 H– 

1B cap. In that year, and for each 

subsequent fiscal year, prospective 

petitioners seeking to file H–1B capsubject petitions (including for 

beneficiaries eligible for the advanced 

degree exemption) were required to first 

electronically register and pay the 

associated H–1B registration fee for each 

prospective beneficiary. When 

registration is required, an H–1B capsubject petition is not eligible for filing 

unless it is based on a selected 

registration that was properly submitted 

by the prospective petitioner, or their 

representative, for the beneficiary. 

Table 30 shows the number of cap 

registration receipts by year, as well as 

the number of registrations that were 

selected to file I–129 H–1B petitions. 

The number of registrations has 

increased over the past 3 years. DHS 

believes that this increase is partially 

due to the increase in multiple 

companies submitting registrations for 

the same beneficiary. USCIS received a 

low of 274,237 H–1B Cap-Subject 

Registrations for cap year FY 2021, and 

a high of 483,927 H–1B Cap-Subject 

Registrations for cap year 2023. DHS has 

not included cap year 2024 data into 

this analysis because such data are 

incomplete.184

DHS estimates the current public 

reporting time burden for an H–1B 

Registration is 31 minutes (0.5167 

hours), which includes the time for 

reviewing instructions, gathering the 


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Table 29. H-lB Cap-Subject Registrations Received and Selected by USCIS, Cap Year 2021 through FY 

2023 

Eligible 

Total Number of Registrations for Eligible Registrations 

Cap Year Registrations Beneficiaries for Beneficiaries with Selections with No Other Multiple Eligible Received Eligible Registrations 

Registrations 

2021 274 237 241.299 28.125 124 415 

2022 308 613 211,304 90.143 131 924 

2023 483,927 309,241 165,180 127,600 

3-Y ear Total 1,066,777 761,844 283,448 383,939 

3-Year Average 355,592 253,948 94,483 127,980 

Source: https:/lwww.uscis.gov/working-in-the-united-states/temporary-workers/h-1 b-speci alty-occupati ans-andfashion-models/h-1 b-electronic-reRistration-process (Mar. 30, 2023). 

Table 30. H-lB Cap-Subject Registrations Received and Selected by USCIS, Cap Year 2021 

through FY 2023 

Eligible 

Total Number of Registrations Eligible Registrations H-lB Cap- for for Beneficiaries with Cap Year Subject Beneficiaries Multiple Eligible Selections 

Registrations with No Other Registrations Submitted Eligible 

Registrations 

2021 274,237 241 299 28 125 124 415 

2022 308,613 211 304 90 143 131 924 

2023 483,927 309 241 165 180 127 600 

3-Year Total 1,066,777 761,844 283,448 383,939 

3-Year Avera2e 355,592 253 948 94,483 127 980 

Source: https:Ilwww.uscis.gov/working-in-the-uni ted-states/temporary-workers/h-1 b-speci altyoccupations-and-fashion-modelslh-1 b-electronic-registration-process Mar. 30, 2023. 

Note* The count of eligible registrations excludes du12licate registrations, those deleted by the 

nrosnective emnlover nrior to the close of the ree:istration neriod and those with failed navments. 
Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 72937 

185USCIS limited its analysis to HR specialists, 

in-house lawyers, and outsourced lawyers to 

present estimated costs. However, USCIS 

understands that not all entities employ individuals 

with these occupations and, therefore, recognizes 

equivalent occupations may also prepare and file 

these petitions or registrations. 

186See BLS, ‘‘Occupational Employment and 

Wage Statistics, Occupational Employment and 

Wages, May 2022, 13–1071 Human Resources 

Specialists,’’ https://www.bls.gov/oes/2022/may/ 

oes131071.htm (last visited May 11, 2023). 

187See BLS, ‘‘Occupational Employment and 

Wage Statistics, Occupational Employment and 

Wages, May 2022, 23–1011 Lawyers,’’ https://

www.bls.gov/oes/2022/may/oes231011.htm (last 

visited May 11, 2023). 

188The benefits-to-wage multiplier is calculated 

as follows: (Total Employee Compensation per 

hour)/(Wages and Salaries per hour) ($42.48 Total 

Employee Compensation per hour)/($29.32 Wages 

and Salaries per hour) = 1.44884 = 1.45 (rounded). 

See BLS, Economic News Release, ‘‘Employer Costs 

for Employee Compensation’’ (Dec. 2022), Table 1. 

‘‘Employer Costs for Employee Compensation by 

ownership’’ (Dec. 2022), https://www.bls.gov/ 

news.release/archives/ecec_03172023.htm (last 

visited Mar. 21, 2023). The Employer Costs for 

Employee Compensation measures the average cost 

to employers for wages and salaries and benefits per 

employee hour worked. 

189Calculation: $35.13 * 1.45 = $50.94 total wage 

rate for HR specialist. 

190Calculation: $78.74 * 1.45 = $114.17 total 

wage rate for in-house lawyer. 

191The ICE ‘‘Safe-Harbor Procedures for 

Employers Who Receive a No-Match Letter’’ used 

a multiplier of 2.5 to convert in-house attorney 

wages to the cost of outsourced attorney based on 

information received in public comment to that 

rule. We believe the explanation and methodology 

used in the Final Small Entity Impact Analysis for 

that rule remains sound for using 2.5 as a multiplier 

for outsourced labor wages in this proposed rule, 

see https://www.regulations.gov/document/ICEB2006-0004-0922, at page G–4. 

192Calculation: $78.74 * 2.5 = $196.85 total wage 

rate for an outsourced lawyer. 

193The DHS analysis in ‘‘Exercise of TimeLimited Authority To Increase the Fiscal Year 2018 

Numerical Limitation for the H–2B Temporary 

Nonagricultural Worker Program,’’ 83 FR 24905 

(May 31, 2018), https://www.federalregister.gov/ 

documents/2018/05/31/2018-11732/exercise-oftime-limited-authority-to-increase-the-fiscal-year2018-numerical-limitation-for-the, used a multiplier 

of 2.5 to convert in-house attorney wages to the cost 

of outsourced attorney wages. The DHS 

Immigration and Customs Enforcement (ICE) rule 

‘‘Final Small Entity Impact Analysis: ‘Safe-Harbor 

Procedures for Employers Who Receive a No-Match 

Letter’ ’’ at G–4 (Aug. 25, 2008), https://

www.regulations.gov/document/ICEB-2006-0004- 

0922, also uses a multiplier. The methodology used 

in the Final Small Entity Impact Analysis remains 

sound for using 2.5 as a multiplier for outsourced 

labor wages in this proposed rule. 

194The DHS analysis in ‘‘Exercise of TimeLimited Authority To Increase the Fiscal Year 2018 

Numerical Limitation for the H–2B Temporary 

Nonagricultural Worker Program,’’ 83 FR 24905 

(May 31, 2018), https://www.federalregister.gov/ 

documents/2018/05/31/2018-11732/exercise-oftime-limited-authority-to-increase-the-fiscal-year2018-numerical-limitation-for-the, used a multiplier 

of 2.5 to convert in-house attorney wages to the cost 

of outsourced attorney wages. Also, the analysis for 

a DHS ICE rule, ‘‘Final Small Entity Impact 

Analysis: ‘Safe-Harbor Procedures for Employers 

Continued 

required information, and submitting 

the registration. 

The number of Form G–28 

submissions allows USCIS to estimate 

the number of H–1B registrations that an 

attorney or accredited representative 

submits and thus estimate the 

opportunity costs of time for an attorney 

or accredited representative to file each 

form. Table 31 shows the number of 

Cap-Subject registrations received with 

and without Form G–28. USCIS 

received a low of 148,964 Cap-Subject 

Registrations with Form G–28 in cap 

year 2022, and a high of 207,053 CapSubject Registrations with Form G–28 in 

cap year 2023. Based on a 3-year annual 

average, DHS estimates the annual 

average receipts of Cap-Subject 

Registrations to be 171,330 with 48 

percent of registrations submitted by an 

attorney or accredited representative. 

In order to estimate the opportunity 

costs of time for completing and filing 

an H–1B registration DHS assumes that 

a registrant will use an HR specialist, an 

in-house lawyer, or an outsourced 

lawyer to prepare an H–1B 

registration.185 DHS uses the mean 

hourly wage of $35.13 for HR specialists 

to estimate the opportunity cost of the 

time for preparing and submitting the 

H–1B registration.186 Additionally, DHS 

uses the mean hourly wage of $78.74 for 

in-house lawyers to estimate the 

opportunity cost of the time for 

preparing and submitting the H–1B 

registration.187

DHS accounts for worker benefits 

when estimating the total costs of 

compensation by calculating a benefitsto-wage multiplier using the BLS report 

detailing the average employer costs for 

employee compensation for all civilian 

workers in major occupational groups 

and industries. DHS estimates that the 

benefits-to-wage multiplier is 1.45 and, 

therefore, is able to estimate the full 

opportunity cost per petitioner, 

including employee wages and salaries 

and the full cost of benefits such as paid 

leave, insurance, retirement, etc.188 DHS 

multiplied the average hourly U.S. wage 

rate for HR specialists and in-house 

lawyers by 1.45 to account for the full 

cost of employee benefits, for a total of 

$50.94 189 per hour for an HR specialist 

and $114.17 190 per hour for an in-house 

lawyer. DHS recognizes that a firm may 

choose, but is not required, to outsource 

the preparation of these petitions and, 

therefore, presents two wage rates for 

lawyers. To determine the full 

opportunity costs of time if a firm hired 

an outsourced lawyer, DHS multiplied 

the average hourly U.S. wage rate for 

lawyers by 2.5 191 for a total of 

$196.85 192 to approximate an hourly 

wage rate for an outsourced lawyer 193 to 

prepare and submit an H–1B 

registration.194


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Table 31. Total Form 1-129 H-lB Cap-Subject Registrations Since the Beginning of the 

Registration System with and without Form G-28, Cap Year 2021 through Cap Year 2023 

Total Number of Total Number Percentage of 

H-lB Cap- ofH-lB Cap- Total ofH-lB H-lB CapSubject Subject Cap-Subject Subject 

Cap Year Registrations Registrations Registrations Registrations 

Submitted Submitted 

without Form Submitted with Submitted with Form GG-28 Form G-28 28 

2021 116.264 157 973 274.237 58% 

2022 159,649 148 964 308,613 48% 

2023 276,874 207 053 483,927 43% 

3-Year Total 552,787 513,990 1,066,777 48% 

3-Year Avera2e 184,262 171,330 355,592 48% 

Source: USCIS Office of Policy and Strategy, PRD CLAIMS3 and ELIS databases, Mar. 30, 2023. 
72938 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

Who Receive a No-Match Letter’ ’’ at G–4 (Aug. 25, 

2008), https://www.regulations.gov/document/ 

ICEB-2006-0004-0922, used a multiplier. The 

methodology used in the Final Small Entity Impact 

Analysis remains sound for using 2.5 as a multiplier 

for outsourced labor wages in this proposed rule. 

Table 32 displays the estimated 

annual opportunity cost of time for 

submitting an H–1B registration 

employing an in-house or outsourced 

lawyer to complete and submit an H–1B 

registration. DHS does not know the 

exact number of registrants who will 

choose an in-house or an outsourced 

lawyer but assumes it may be a 50/50 

split and therefore provides an average. 

These current opportunity costs of time 

for submitting an H–1B registration 

using an attorney or other representative 

are estimated to range from $10,107,038 

to $17,426,385 with an average of 

$13,766,712. 

To estimate the current remaining 

opportunity cost of time for an HR 

specialist submitting an H–1B 

registration without a lawyer, DHS 

applies the estimated public reporting 

time burden (0.5167 hours) to the 

compensation rate of an HR specialist. 

Table 33 estimates the current total 

annual opportunity cost of time to HR 

specialists completing and submitting 

an H–1B registration will be 

approximately $4,849,904. 

Table 34 shows the proposed 

estimated time burden will increase by 

5 minutes to 36 minutes (0.6 hours) to 

the eligible population and 

compensation rates of those who may 

submit registrations with or without a 

lawyer due to changes in the 

instructions, adding clarifying language 

regarding denying or revoking approved 

H–1B petitions, adding passport 

instructional language, and adding 

verification before submitting 

instructions. DHS does not know the 

exact number of registrants who will 

choose an in-house or an outsourced 

lawyer but assumes it may be a 50/50 

split and therefore provides an average. 

DHS estimates that these current 

opportunity costs of time for submitting 

an H–1B registration using an attorney 

or other representative range from 

$11,736,448 to $20,235,786 with an 

average of $15,986,117. 


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Table 32. Current Average Opportunity Costs of Time for Submitting an H-lB Registration with 

an Attorney or Other Representative 

Population Time Burden to Total 

Complete H-lB Current Submitting with a Registration Cost of Time Opportunity Lawyer (Hours) Cost 

A B C D=(AxBxC) 

In-house lawver 171 330 0.5167 $114.17 $10,107 038 

Outsourced 171,330 0.5167 $196.85 $17,426,385 lawver 

Averae:e $13,766,712 

Source: USCIS Analvsis 

Table 33. Current Average Opportunity Costs of Time for Submitting an H-lB 

Re2istration, without an Attornev or Accredited Representative 

Time Burden to HR Specialist's Total Complete H-lB Population Registration Opportunity Cost Opportunity 

(Hours) of time Cost of Time 

A B C D=(AxBxC) 

Estimate of H-lB 184,262 0.5167 $50.94 $4,849,904 Registrations 

Source: USCIS Analysis 
Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 72939 

To estimate the current remaining 

opportunity cost of time for an HR 

specialist submitting an H–1B 

registration without a lawyer, DHS 

applies the proposed estimated public 

reporting time burden (0.6 hours) to the 

compensation rate of an HR specialist. 

Table 35 estimates the current total 

annual opportunity cost of time to HR 

specialists completing and submitting 

the H–1B registration will be 

approximately $5,631,784. 

DHS estimates the total additional 

annual cost to petitioners completing 

and filing Form I–129 H–1B are 

expected to be $3,001,285 shown in 

Table 36. This table shows the current 

total opportunity cost of time to submit 

an H–1B registration and the proposed 

total opportunity cost of time. 


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Table 34. New Opportunity Costs of Time for an H-lB Registration, Petitioners Submitting with 

an Attornev or Other Reoresentative 

Population of Time Burden to Total Petitioners Complete FH-lB Cost of Time Opportunity Submitting with Registration 

a Lawver (Hours) Cost 

A B C D=(AxBxC) 

In House Lawver 171 330 0.6 $114.17 $11 736,448 

Outsourced 171,330 0.6 $196.85 $20,235,786 Lawver 

Average $15,986,117 

Source: USCIS Analvsis 

Table 35. Proposed Average Opportunity Costs of Time for an H-lB Registration, 

Submittin2 without an Attorney or Accredited Re ~resentative 

Time Burden to HR Specialist's Total 

Population Complete H-lB Opportunity Cost Opportunity Registration of time ( 48.40 

(Hours) /hr.) Cost of Time 

A B C D=(AxBxC) 

Estimate H-lB 184,262 0.6 $50.94 $5,631,784 Registration 

Source: USCIS Analysis 

Table 36. Total Costs to Complete the H-lB Registration 

Average Current Opportunity Cost Time for Lawyers to $13,766,712 Complete the H-lB Registration 

Average Current Opportunity Cost Time for HR Specialist to $4,849,904 Complete the H-lB Registration 

Total $18,616,616 

Average Proposed Opportunity Cost Time for Lawyers to $15,986,117 Complete the H-lB Registration 

Average Proposed Opportunity Cost Time for HR Specialist $5,631,784 to Complete the H-lB Registration 

Total $21,617,901 

Proposed Additional Opportunity Costs of Time to $3,001,285 Complete the H-lB Registration 

Source: USCIS Analysis 
72940 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

195Calculation: 100%¥71% Registrations for a 

single beneficiary = 29% Registrations submitted 

for multiple beneficiaries. 

196Calculation: Total Registrations 355,592— 

Total number of unique beneficiaries with 

registrations submitted on their behalf 282,091 = 

73,501 Estimate of registrations that may no longer 

be submitted. 

j. Beneficiary Centric Selection 

Under the proposed provision, DHS 

would modify the random selection 

process. Registrants would continue to 

submit registrations on behalf of 

beneficiaries, and beneficiaries would 

continue to be able to have more than 

one registration submitted on their 

behalf, as generally allowed by 

applicable regulations. If a random 

selection were necessary (meaning, 

more registrations are submitted than 

the number of registrations USCIS 

projected as needed to reach the 

numerical allocations), then the random 

selection would be based on each 

unique beneficiary identified in the 

registration pool, rather than each 

registration. If a beneficiary is selected, 

then all registrants who properly 

submitted a registration for that selected 

beneficiary would be notified of the 

selection and that they are eligible to 

file an H–1B cap petition on behalf of 

the beneficiary during the applicable 

petition filing period. 

DHS believes that changing how 

USCIS conducts the selection process to 

select by unique beneficiaries instead of 

registrations would give each unique 

beneficiary an equal chance at selection 

and would reduce the advantage that 

beneficiaries with multiple registrations 

submitted on their behalf have over 

beneficiaries with a single registration 

submitted on their behalf. DHS believes 

that it would also reduce the incentive 

that registrants may have to work with 

others to submit registrations for the 

same beneficiary to unfairly increase the 

chance of selection for the beneficiary 

because doing so under the beneficiarycentric selection approach would not 

result in an increase in the odds of 

selection. Selecting by unique 

beneficiary could also result in other 

benefits, such as giving beneficiaries 

greater autonomy regarding their H–1B 

employment and improving the chances 

of selection for legitimate registrations. 

Because the integrity of the new 

selection process would rely on USCIS’s 

ability to accurately identify each 

individual beneficiary, and all 

registrations submitted on their behalf, 

DHS proposes to require the submission 

of valid passport information, including 

the passport number, country of 

issuance, and expiration date, in 

addition to the currently required 

information. See proposed 8 CFR 

214.2(h)(8)(iii)(A)(4)(ii). While the 

proposed passport requirement could 

impact individuals who do not yet hold 

passports at the time of registration, 

DHS has determined the described 

benefits of program integrity outweigh 

any additional burden to prospective 

beneficiaries. DHS invites public 

comment on the proposed passport 

requirement. 

DHS estimates that the annual average 

receipts of H–1B registrations is 355,592 

with 71 percent of registrations being 

submitted for a beneficiary with only a 

single registration. DHS estimates that 

29 percent 195 of registrations are 

submitted by companies for 

beneficiaries who have also had other 

registrations submitted on their behalf. 

Based on this new provision DHS 

estimates that there may be a reduction 

in registrations because beneficiaries 

will be less inclined to find as many 

different employers to submit 

registrations on their behalf as doing so 

would not affect their chance of 

selection. Also, DHS expects to see less 

abuse by unscrupulous registrants as 

they would not be able to increase the 

chance of selection for a beneficiary by 

working together with others to submit 

multiple registrations for the same 

beneficiary. 

DHS estimates that 73,501 196

registrations annually may no longer be 

submitted due to this proposed change. 

Of those 73,501 registrations, DHS 

estimated that an attorney or accredited 

representative submitted 48 percent of 

registrations and an HR representative 

submitted the remaining 52 percent 

shown in Table 31. 

Table 38 displays the estimated 

annual opportunity cost of time for 

submitting an H–1B registration 

employing an in-house or outsourced 

lawyer to complete and submit an H–1B 

registration. DHS does not know the 

exact number of prospective petitioners 

who will choose an in-house or an 

outsourced lawyer but assumes it may 

be a 50/50 split and therefore provides 

an average. DHS estimates that these 

current opportunity costs of time for 

submitting an H–1B registration using 

an attorney or other representative range 

from $2,081,225 to $3,588,413, with an 

average of $2,834,819. 


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Table 37. H-lB Cap-Subject Registrations Received by USCIS for Unique Beneficiaries, Cap Year 

2021 throu2:h 2023 

Total number Total number Total number 

of of of unique % of Total 

Total registrations registrations beneficiaries Registrations Cap Year Registrations submitted for submitted for with with Single beneficiaries beneficiaries registrations Beneficiary with multiple with a single submitted on 

re!!istrations re!!istration their behalf 

2021 274,237 34,349 239,888 253,331 87% 

2022 308 613 98.547 210 066 235720 68% 

2023 483,927 176,444 307,483 357,222 64% 

3-vear Total 1.066.777 309,340 757.437 846.273 71% 

3-year 

Annual 355,592 103,113 252,479 282,091 71% 

Avera2:e 

Source: USCIS Office of Performance and Quality 
Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 72941 

197Calculation: Total Opportunity Cost Savings of 

time for H–1B Registrations ($3,840,822) + Total 

Cost Savings for Registration Fees ($735,010) = 

$4,575,832 Total Cost Savings. 

To estimate the current remaining 

opportunity cost of time for an HR 

specialist submitting an H–1B 

registration without a lawyer, DHS 

applies the estimated public reporting 

time burden (0.5167 hours) to the 

compensation rate of an HR specialist. 

Table 39 estimates the current total 

annual opportunity cost of time to HR 

specialists completing and submitting 

an H–1B registration will be 

approximately $1,006,003. 

DHS estimates the total annual 

opportunity cost savings of time for not 

having to complete and submit H–1B 

registrations for beneficiaries with 

multiple registrations are expected to be 

$3,840,822, shown in Table 40. 

Prospective petitioners seeking to file 

H–1B cap-subject petitions, including 

for beneficiaries eligible for the 

advanced degree exemption, must first 

electronically register and pay the 

associated $10 H–1B registration fee for 

each prospective beneficiary. Due to this 

proposed change DHS estimates that 

prospective petitioners may now see an 

additional cost savings of $735,010. The 

annual total cost savings of this 

proposed beneficiary centric selection is 

$4,575,832.197


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Table 38. Current Annual Average Opportunity Costs of Time for Submitting an H-lB 

Re2istration, with an Attornev or Other Renresentative 

Population of Time Burden to Total 

Registrants Complete H-lB Cost of Time Current 

Submitting with Registration Opportunity 

a Lawver (Hours) Cost 

A B C D=(AxBxC) 

In House Lawver 35,280 0.5167 $114.17 $2,081,225 

Outsourced 35,280 0.5167 $196.85 $3,588,413 Lawver 

Avera2e $2,834,819 

Source: USCIS Analvsis 

Table 39. Current Annual Average Opportunity Costs of Time for Submitting an H-lB 

Re2istration, without an Attornev or Accredited Renresentative 

Time Burden to HR Specialist's Total Complete H-lB Population Registration Opportunity Cost Opportunity 

(Hours) of time Cost of Time 

A B C D=(AxBxC) 

Estimate of H-lB 38,221 0.5167 $50.94 $1,006,003 Registrations 

Source: USCIS Analysis 

Table 40. Total Annual Onnortunitv Cost Savin2s of Time for H-lB Re2istrations 

Average Current Opportunity Cost Time for $2,834,819 Lawyers to Complete H-lB Registration 

Average Current Opportunity Cost Time for HR $1,006,003 Specialist to Complete H-lB Registration 

Total $3,840,822 

Source: USCIS Analvsis 

Table 41. Total Annual Cost Savings for Registration Fees 

Annual Registrations for the same beneficiaries 73,501 

Registration Fee $10 

Total Cost savin2s $735,010 

Source: USCIS Analysis 
72942 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

198The regulations state that when an RFE is 

served by mail, the response is timely filed if it is 

received no more than 3 days after the deadline, 

providing a total of 87 days for a response to be 

submitted if USCIS provides the maximum period 

of 84 days under the regulations. The maximum 

response time for a NOID is 30 days. See https:// 

www.uscis.gov/policy-manual/volume-1-part-echapter-6. 

k. Bar on Multiple Registrations 

Submitted by Related Entities 

DHS regulations already preclude the 

filing of multiple H–1B cap-subject 

petitions by related entities for the same 

beneficiary unless the related 

petitioners can establish a legitimate 

business need for filing multiple capsubject petitions for the same 

beneficiary. DHS is not proposing to 

change this in the current regulation. 

Rather, DHS is proposing to extend a 

similar limitation to the submission of 

registrations by related entities. See 

proposed 8 CFR 214.2(h)(2)(i)(G). When 

an employer submits a registration, they 

attest that they intend to file a petition 

based on that registration and that there 

is a legitimate job offer. To allow related 

employers to submit registrations 

without a legitimate business need, but 

not allow them to file petitions without 

a legitimate business need, creates an 

inconsistency between the antecedent 

procedural step of registration and the 

petition filing. Extending the bar on 

multiple petition filings by related 

entities to multiple registration 

submissions by related entities for the 

same cap-subject beneficiary would 

harmonize the expectations for petition 

filing and registration submission. 

While the proposed changes to the 

beneficiary centric selection are 

intended to reduce frivolous 

registrations, DHS cannot guarantee 

with certainty that such change would 

eliminate entities from working with 

each other to submit registrations to 

unfairly increase chances of selection 

for a beneficiary by submitting slightly 

different identifying information or 

other means. Therefore, this provision 

may serve as an additional deterrent to 

further reduce the incentive for 

companies filing multiple registrations 

to have a higher chance of selection. 

This change may benefit petitioners 

whose chances of selection have been 

negatively affected by companies filing 

multiple registrations to increase the 

chances of selection. DHS cannot 

estimate the number of petitioners that 

this provision may benefit, because DHS 

cannot accurately measure how many 

petitioners are not submitting legitimate 

registrations or filing legitimate 

petitions in this manner. 

l. Registrations With False Information 

or That Are Otherwise Invalid 

Although registration is an antecedent 

procedural step undertaken prior to 

filing an H–1B cap-subject petition, the 

validity of the registration information 

is key to the registrant’s eligibility to file 

a petition. As stated in the current 

regulations, ‘‘[t]o be eligible to file a 

petition for a beneficiary who may be 

counted against the H–1B regular cap or 

the H–1B advanced degree exemption 

for a particular fiscal year, a registration 

must be properly submitted in 

accordance with 8 CFR 103.2(a)(1), [8 

CFR 214.2(h)(8)(iii),] and the form 

instructions.’’ See 8 CFR 

214.2(h)(8)(iii)(A)(1). USCIS does not 

consider a registration to be properly 

submitted if the information contained 

in the registration, including the 

required attestations, was not true and 

correct. Currently, the regulations state 

that it is grounds for denial or 

revocation if the statements of facts 

contained in the petition are not true 

and correct, inaccurate, fraudulent, or 

misrepresented a material fact. DHS 

proposes to clarify in the regulations 

that the grounds for denial of an H–1B 

petition or revocation of an H–1B 

petition approval extend to the 

information provided in the registration 

and to expressly state in the regulations 

that this includes attestations on the 

registration that are determined by 

USCIS to be false. 

DHS is also proposing changes to the 

regulations governing registration that 

would provide USCIS with clearer 

authority to deny or revoke the approval 

of a petition based on a registration that 

was not properly submitted or was 

otherwise invalid. 

Specifically, DHS is proposing to add 

that if a petitioner submits more than 

one registration per beneficiary in the 

same fiscal year, all registrations filed 

by that petitioner relating to that 

beneficiary for that fiscal year may be 

considered not only invalid, but that 

‘‘USCIS may deny or revoke the 

approval of any petition filed for the 

beneficiary based on those 

registrations.’’ 

Additionally, DHS is proposing to add 

that USCIS may deny or revoke the 

approval of an H–1B petition if it 

determines that the fee associated with 

the registration is declined, not 

reconciled, disputed, or otherwise 

invalid after submission. 

These proposed changes may increase 

the need for RFEs and NOIDs. It is 

important to note that issuing RFEs and 

NOIDs takes time and effort for 

adjudicators—to send, receive, and 

adjudicate documentation—and it 

requires additional time and effort for 

petitioners to respond, resulting in 

extended timelines for adjudications.198

Data on RFEs and NOIDs related to H– 

1B false information are not 

standardized or tracked in a consistent 

way, thus they are not accurate or 

reliable. 

m. Provisions To Ensure Bona Fide Job 

Offer for a Specialty Occupation 

Position 

(1) Contracts 

DHS proposes to codify USCIS’ 

authority to request contracts, work 

orders, or similar evidence. See 

proposed 8 CFR 214.2(h)(4)(iv)(C). Such 

evidence may take the form of contracts 

or legal agreements, if available, or other 

evidence including technical 

documentation, milestone tables, or 

statements of work. Evidence submitted 

should show the contractual 

relationship between all parties, the 

terms and conditions of the 

beneficiary’s work, and the minimum 

educational requirements to perform the 

duties. 

While USCIS already has the 

authority to request contracts and other 

similar evidence, the regulations do not 

state this authority. By proposing to 

codify this authority, USCIS is putting 

stakeholders on notice of the kinds of 

evidence that could be requested to 

establish the terms and conditions of the 

beneficiary’s work and the minimum 

educational requirements to perform the 

duties. This evidence, in turn, could 

establish that the petitioner has a bona 

fide job offer for a specialty occupation 

position for the beneficiary. Relative to 

the no action baseline, this change has 

no costs associated with it, and there 

may be transparency benefits due to this 

proposed change. Relative to the pre 

policy baseline petitioners may have 

taken time to find contracts or legal 

agreements, if available, or other 

evidence including technical 

documentation, milestone tables, or 

statements of work. DHS cannot 

estimate how much time it would have 

taken for petitioners to provide that 

information. 

(2) Non-Speculative Employment 

DHS proposes to codify its 

requirement that the petitioner must 

establish, at the time of filing, that it has 

a non-speculative position in a specialty 

occupation available for the beneficiary 

as of the start date of the validity period 

as requested on the petition. See 

proposed 8 CFR 214.2(h)(4)(iv)(D). This 

change is consistent with current DHS 

policy guidance that an H–1B petitioner 

must establish that employment exists 

at the time of filing the petition and that 


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Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 72943 

199See USCIS, ‘‘Rescission of Policy 

Memoranda,’’ PM–602–0114 (June 17, 2020) (citing 

Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010)). 

200See, e.g., National Bureau of Economic 

Research, ‘‘Winning the H–1B Visa Lottery Boosts 

the Fortunes of Startups’’ (Jan. 2020), https://

www.nber.org/digest/jan20/winning-h-1b-visalottery-boosts-fortunes-startups (‘‘The opportunity 

to hire specialized foreign workers gives startups a 

leg up over their competitors who do not obtain 

visas for desired employees. High-skilled foreign 

labor boosts a firm’s chance of obtaining venture 

capital funding, of successfully going public or 

being acquired, and of making innovative 

breakthroughs.’’). Pierre Azoulay, et. al, 

‘‘Immigration and Entrepreneurship in the United 

States’’ (National Bureau of Economic Research, 

Working Paper 27778 (Sept. 2020) https://

www.nber.org/system/files/working_papers/ 

w27778/w27778.pdf (‘‘immigrants act more as ‘job 

creators’ than ‘job takers’ and . . . non-U.S. born 

founders play outsized roles in U.S. high-growth 

entrepreneurship’’). 

201See INA section 103 and 8 CFR 2.1. As stated 

in subsection V.A.5.ii(d) of this analysis, regulation 

would also clarify the possible scope of an 

inspection, which may include the petitioning 

organization’s headquarters, satellite locations, or 

the location where the beneficiary works or will 

work, including third-party worksites, as 

applicable. 

it may employ the beneficiary in a 

specialty occupation.199 Relative to the 

no action baseline, this change has no 

costs associated with it, and there may 

be transparency benefits due to this 

proposed change. Relative to the pre 

policy baseline petitioners may require 

time to provide documentation to 

establish that their position was a nonspeculative position in a specialty 

occupation. DHS cannot estimate how 

much time it takes for petitioners to 

provide that information. 

(3) LCA Corresponds With the Petition 

DHS is proposing to update the 

regulations to expressly include DHS’s 

existing authority to ensure that the 

LCA properly supports and corresponds 

with the accompanying H–1B petition. 

Relative to the no action baseline, this 

change has no costs and may yield 

transparency benefits due to consistency 

between regulation and current policy. 

Relative to the pre policy baseline 

petitioners may have taken time to 

provide their LCA to DHS, however 

DHS cannot estimate how much time it 

would have taken for petitioners to 

provide that information. 

(4) Revising the Definition of U.S. 

Employer 

DHS is proposing to revise the 

definition of ‘‘United States employer.’’ 

First, DHS proposes to eliminate the 

employer-employee relationship 

requirement. In place of the employeremployee relationship requirement, 

DHS proposes to codify the requirement 

that the petitioner has a bona fide job 

offer for the beneficiary to work, which 

may include telework, remote work, or 

other off-site work within the United 

States. DHS also proposes to replace the 

requirement that the petitioner 

‘‘[e]ngages a person to work within the 

United States’’ with the requirement 

that the petitioner have a legal presence 

and is amenable to service of process in 

the United States. Relative to the no 

action baseline, this change has no costs 

associated with it, and there may be 

transparency benefits due to this 

proposed change. Relative to the pre 

policy baseline, petitioners may require 

time to provide documentation 

establishing a bona fide job offer for the 

beneficiary to work. DHS cannot 

estimate how much time petitioners 

take to provide that information. 

(5) Employer-Employee Relationship 

DHS proposes to eliminate the 

employer-employee relationship 

requirement, which, in the past, has 

been a significant barrier to the H–1B 

program for certain petitioners, 

including beneficiary-owned 

petitioners. This proposed change 

would benefit petitioners because it may 

decrease confusion and increase clarity 

for stakeholders. Relative to the no 

action baseline, this change has no costs 

associated with it, and there may be 

transparency benefits due to this 

proposed change. Relative to the pre 

policy baseline petitioners may have 

taken time to understand the change. 

n. Beneficiary-Owners 

DHS proposes to codify a petitioner’s 

ability to qualify as a U.S. employer 

even when the beneficiary possesses a 

controlling interest in that petitioner. To 

promote access to H–1Bs for 

entrepreneurs, start-up entities, and 

other beneficiary-owned businesses, 

DHS is proposing to add provisions to 

specifically address situations where a 

potential H–1B beneficiary owns a 

controlling interest in the petitioning 

entity. If more entrepreneurs are able to 

obtain H–1B status to develop their 

business enterprise, the United States 

could benefit from the creation of jobs, 

new industries, and new 

opportunities.200 This proposed change 

would benefit H–1B petitions filed by 

start-up entities and other beneficiaryowned businesses, or filed on behalf of 

entrepreneurs who have a controlling 

interest in the petitioning entity. DHS is 

unable to estimate how many 

petitioners would benefit from this 

proposed change. 

DHS is also proposing to limit the 

validity period for beneficiary-owned 

entities. DHS proposes to limit the 

validity period for the initial petition 

and first extension (including an 

amended petition with a request for an 

extension of stay) of such a petition to 

18 months. See proposed 8 CFR 

214.2(h)(9)(iii)(E). Any subsequent 

extension would not be limited and may 

be approved for up to 3 years, assuming 

the petition satisfies all other H–1B 

requirements. DHS proposes limiting 

the first two validity periods to 18 

months as a safeguard against possible 

fraudulent petitions. While DHS sees a 

significant advantage in promoting the 

H–1B program to entrepreneurs and 

allowing these beneficiaries to perform 

a significant amount of non-specialty 

occupation duties, unscrupulous 

petitioners might abuse such provisions 

without sufficient guardrails. DHS 

believes that there may be a cost to 

petitioners associated with this change 

however cannot estimate how many 

petitioners may be affected by limiting 

the validity period. 

o. Site Visits 

USCIS conducts inspections, 

evaluations, verifications, and 

compliance reviews, to ensure that a 

petitioner and beneficiary are eligible 

for the benefit sought and that all laws 

have been complied with before and 

after approval of such benefits. These 

inspections, verifications, and other 

compliance reviews may be conducted 

telephonically or electronically, as well 

as through physical on-site inspections 

(site visits). DHS is proposing to add 

regulations specific to the H–1B 

program to codify its existing authority 

and clarify the scope of inspections and 

the consequences of a petitioner’s or 

third party’s refusal or failure to fully 

cooperate with these inspections. 

Currently, site visit inspections are not 

mandatory for petitioners filing Form I– 

129 on behalf of H–1B specialty 

occupation nonimmigrant workers. 

Using its general authority, USCIS may 

conduct audits, on-site inspections, 

reviews, or investigations to ensure that 

a beneficiary is entitled to the benefits 

sought and that all laws have been 

complied with before and after approval 

of such benefits.201 The authority to 

conduct on-site inspection is critical to 

the integrity of the H–1B program to 

detect and deter fraud and 

noncompliance. 


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72944 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

202See USCIS, ‘‘Administrative Site Visit and 

Verification Program,’’ https://www.uscis.gov/ 

about-us/directorates-and-program-offices/frauddetection-and-national-security/administrative-sitevisit-and-verification-program (last visited Sept. 18, 

2019). See USCIS, ‘‘Administrative Site Visit and 

Verification Program,’’ https://www.uscis.gov/ 

about-us/directorates-and-program-offices/frauddetection-and-national-security/administrative-sitevisit-and-verification-program (last visited Sept. 18, 

2019). See USCIS, ‘‘Administrative Site Visit and 

Verification Program,’’ https://www.uscis.gov/ 

about-us/directorates-and-program-offices/frauddetection-and-national-security/administrative-sitevisit-and-verification-program https://

www.uscis.gov/about-us/directorates-and-programoffices/fraud-detection-and-national-security/ 

administrative-site-visit-and-verification-program 

(last visited Sept. 18, 2019). 

203USCIS, Office of Policy and Strategy, PRD, 

Summary of H–1B Site Visits Data. 

204 Id. 

205 DHS, USCIS, PRD (2022). PRD196. USCIS 

conducted these site visits through its 

Administrative and Targeted Site Visit Programs. 

206See USCIS, ‘‘Putting American Workers First: 

USCIS Announces Further Measures to Detect H– 

1B Visa Fraud and Abuse,’’ (April 3, 2017), https:// 

www.uscis.gov/archive/putting-american-workersfirst-uscis-announces-further-measures-to-detect-h1b-visa-fraud-and-abuse. 

In July 2009, USCIS started the 

Administrative Site Visit and 

Verification Program 202 as an additional 

method to verify information in certain 

visa petitions under scrutiny. Under this 

program, FDNS officers are authorized 

to make unannounced site visits to 

collect information as part of a 

compliance review, which verifies 

whether petitioners and beneficiaries 

are following the immigration laws and 

regulations that are applicable in a 

particular case. This process includes 

researching information in government 

databases, reviewing public records and 

evidence accompanying the petition, 

interviewing the petitioner or 

beneficiary, and conducting site visits. 

Once the FDNS officers complete the 

site visit, they write a Compliance 

Review Report for any indicators of 

fraud or noncompliance to assist USCIS 

in final adjudicative decisions. 

The site visits conducted under 

USCIS’s existent, general authority, and 

thus part of the baseline against which 

this proposed rule’s impact should be 

measured, have uncovered a significant 

amount of noncompliance in the H–1B 

program.203 Further, when 

disaggregated by worksite location, the 

noncompliance rate was found to be 

higher for workers placed at an off-site 

or third-party location compared to 

workers placed at a petitioner’s on-site 

location.204 As a result, USCIS began 

conducting more targeted site visits 

related to the H–1B program, focusing 

on the cases of H–1B dependent 

employers (i.e., employers who have a 

high ratio of H–1B workers compared to 

U.S. workers, as defined by statute) for 

whom USCIS cannot validate the 

employer’s basic business information 

through commercially available data, 

and on employers petitioning for H–1B 

workers who work off-site at another 

company or organization’s location. 

DHS believes that site visits are 

important to maintain the integrity of 

the H–1B program to detect and deter 

fraud and noncompliance in the H–1B 

program, which in turn ensures the 

appropriate use of the H–1B program 

and the protection of the interests of 

U.S. workers. These site visits would 

continue in the absence of this proposed 

rule and DHS notes that current Form I– 

129 instructions notify petitioners of 

USCIS’ legal authority to verify 

information before or after a case 

decision, including by means of 

unannounced physical site inspection. 

Hence, DHS is proposing additional 

requirements specific to the H–1B 

program to set forth the scope of on-site 

inspections, and the consequences of a 

petitioner’s or third party’s refusal or 

failure to fully cooperate with existing 

inspections. DHS does not foresee the 

rule leading to more on-site inspections. 

This proposed rule would provide a 

clear disincentive for petitioners that do 

not cooperate with compliance reviews 

and inspections while giving USCIS 

greater authority to access and confirm 

information about employers and 

workers as well as identify fraud. 

The proposed regulations would make 

clear that inspections may include, but 

are not limited to, an on-site visit of the 

petitioning organization’s facilities, 

interviews with its officials, review of 

its records related to compliance with 

immigration laws and regulations, and 

interviews with any other individuals or 

review of any other records that USCIS 

may lawfully obtain and that it 

considers pertinent to verify facts 

related to the adjudication of the 

petition, such as facts relating to the 

petitioner’s and beneficiary’s eligibility 

and continued compliance with the 

requirements of the H–1B program. See 

proposed 8 CFR 214.2(h)(4)(i)(B)(2). The 

proposed regulation would also clarify 

that an inspection may take place at the 

petitioning organization’s headquarters, 

satellite locations, or the location where 

the beneficiary works or will work, 

including third-party worksites, as 

applicable. The proposed provisions 

would make clear that an H–1B 

petitioner or any employer must allow 

access to all sites where the labor will 

be performed for the purpose of 

determining compliance with applicable 

H–1B requirements. The proposed 

regulation would state the consequences 

if USCIS is unable to verify facts related 

to an H–1B petition due to the failure or 

refusal of the petitioner or a third-party 

worksite to cooperate with a site visit. 

These failures or refusals may be 

grounds for denial or revocation of any 

H–1B petition related to locations that 

are a subject of inspection, including 

any third-party worksites. See proposed 

8 CFR 214.2(h)(4)(i)(B)(2). 

In order to estimate the population 

impacted by site visits, DHS uses site 

inspection data used to verify facts 

pertaining to the H–1B petition 

adjudication process. The site 

inspections were conducted at H–1B 

petitioners’ on-site locations and thirdparty worksites during FY 2018 through 

FY 2022. For instance, from FY 2019 

through FY 2022, USCIS conducted a 

total of 27,062 H–1B compliance 

reviews and found 5,037 of them, equal 

to 19 percent, to be noncompliant or 

indicative of fraud.205 These compliance 

reviews (from FY 2019 through FY 

2022) consisted of reviews conducted 

under both the Administrative Site Visit 

and Verification Program and the 

Targeted Site Visit and Verification 

Program, which began in 2017. The 

targeted site visit program allows USCIS 

to focus resources where fraud and 

abuse of the H–1B program may be more 

likely to occur.206

Table 42 shows the number of H–1B 

worksite inspections conducted each 

year and the number of visits that 

resulted in compliance and 

noncompliance. USCIS received a low 

of 1,057 fraudulent/noncompliant cases 

in FY 2022, and a high of 1,469 

fraudulent/noncompliant cases in FY 

2021. DHS estimates that, on average, 

USCIS conducted 6,766 H–1B worksite 

inspections annually from FY 2019 

through FY 2022 and of those DHS finds 

a noncompliance rate of 19 percent. 

Assuming USCIS continues worksite 

inspections at the 4-year annual average 

rate, the population impacted by this 

proposed provision would be 1,259 or 

19 percent of H–1B petitioners visited 

who are found noncompliant or 

indicative of fraud. The outcomes of site 

visits under the proposed rule are 

indeterminate as currently 

noncooperative petitioners might be 

found to be fully compliant, might 

continue to not cooperate with site 

visits despite penalties, or might be 

forced to reveal fraudulent practices to 

USCIS. The expected increase in 

cooperation from current levels would 

be the most important impact of the 

proposed provision, which DHS 

discusses below. DHS notes that the 

increased cooperation might come 

disproportionately from site visits of 

third-party worksites that did not sign 

Form I–129 attesting to permit 


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Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 72945 

207 DHS does not estimate any other USCIS costs 

associated with the worksite inspections (i.e., travel 

and deskwork relating to other research, review and 

document write up) here because these costs are 

covered by fees collected from petitioners filing 

Form I–129 for H–1B petitions. All such costs are 

reported under the Federal Government Cost 

section. 

208This is the annual average earning of all H– 

1B nonimmigrant workers in all industries with 

known occupations (excluding industries with 

unknown occupations) for FY 2021. It is what 

employers agreed to pay the nonimmigrant workers 

at the time the applications were filed and 

estimated based on full-time employment for 12 

months, even if the nonimmigrant worker worked 

fewer than 12 months. USCIS, ‘‘Characteristics of 

H–1B Specialty Occupation Workers, Fiscal Year 

2021 Annual Report to Congress, October 1, 2020– 

September 30, 2021,’’ at 16, Table 9a (Mar. 2, 2022), 

https://www.uscis.gov/sites/default/files/document/ 

data/H1B_Characteristics_Congressional_Report_

FY2021-3.2.22.pdf. 

unannounced physical site inspections of residences and places of employment 

by USCIS. 

Table 43 shows the average duration 

of time to complete each inspection was 

1.08 hours. Therefore, DHS assumes that 

USCIS would continue to conduct the 

same number of annual worksite 

inspections (7,252), on average, and that 

the average duration of time for a USCIS 

immigration officer to conduct each 

worksite inspection would be an 

average of 1.08 hours. The data in Table 

42 and Table 43 differ slightly based on 

the different search criteria, pull dates 

and systems accessed. DHS also 

assumes that the average duration of 

time of 1.08 hours to conduct an 

inspection covers the entire inspection 

process, which includes interviewing 

the beneficiary, the on-site supervisor or 

manager and other workers, as 

applicable, and reviewing all records 

pertinent to the H–1B petitions available 

to USCIS when requested during 

inspection. 

DHS assumes that a supervisor or 

manager, in addition to the beneficiary, 

would be present on behalf of a 

petitioner while a USCIS immigration 

officer conducts the worksite 

inspection. The officer would interview 

the beneficiary to verify the date 

employment started, work location, 

hours, salary, and duties performed to 

corroborate with the information 

provided in an approved petition. The 

supervisor or manager would be the 

most qualified employee at the location 

who could answer all questions 

pertinent to the petitioning organization 

and its H–1B nonimmigrant workers. 

They would also be able to provide the 

proper records available to USCIS 

immigration officers. Consequently, for 

the purposes of this economic analysis, 

DHS assumes that on average two 

individuals would be interviewed 

during each worksite inspection: the 

beneficiary and the supervisor or 

manager. DHS uses their respective 

compensation rates in the estimation of 

the worksite inspection costs.207

However, if any other worker or on-site 

manager is interviewed, the same 

compensation rates would apply. 

DHS uses hourly compensation rates 

to estimate the opportunity cost of time 

a beneficiary and supervisor or manager 

would incur during worksite 

inspections. Based on data obtained 

from a USCIS report in 2022, DHS 

estimates that an H–1B worker earned 

an average of $116,000 per year in FY 

2021.208 DHS therefore estimates the 

salary of an H–1B worker is 


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Table 42. H-lB Compliance and Fraud/Noncompliance Percentages Closed by FDNS Overall, FY 

2019 throu2h FY 2022 

Fiscal Year Compliant Fraud/Noncompliant Total Percent of 

Fraud/Noncompliance 

2019 7,891 1,431 9,322 15% 

2020 4,063 1,080 5,143 21% 

2021 5,413 1,469 6,882 21% 

2022 4,658 1,057 5,715 18% 

4-vear Total 22,025 5,037 27,062 19% 

4-year 

Annual 5,506 1,259 6,766 19% 

Avera2e 

Source: USCIS Fraud Detection and National Securitv (FDNS) Jan. 23 2023 

Table 43. Total Number of Worksite Inspections Conducted for H-lB Petitioners and Average 

Inspection Time, FY 2018 to FY 2022. 

Fiscal Year Number of Worksite Inspections Average Duration for Worksite 

Inspection (Hours) 

2018 7,718 1.16 

2019 10,384 1.23 

2020 5,826 1.12 

2021 6,780 0.86 

2022 5,550 1.05 

5-year Total 36,258 5.42 

5-year A vera2e 7,252 1.08 

Source: USCIS, Fraud Detection and National Security (FDNS). Apr. 12, 2023 
72946 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

209The hourly wage is estimated by diving the 

annual salary by the total number of hours worked 

in a year (2,080, which is 40 hours of full-time 

workweek for 52 weeks). $55.77 hourly wage = 

$116,000 annual pay ÷ 2,080 annual work hours. 

According to DOL that certifies the LCA of the H– 

1B worker, a full-time H–1B employee works 40 

hours per week for 52 weeks for a total of 2,080 

hours in a year assuming full-time work is 40 hours 

per week. DOL, Wage and hour Division: ‘‘Fact 

Sheet #68—What Constitutes a Full-Time Employee 

Under H–1B Visa Program? ’’ (July 2009), https://

www.dol.gov/whd/regs/compliance/whdfs68.htm 

(Last visited July 30, 2019). 210Hourly compensation of $ 80.87 = $55.77 

average hourly wage rate for H–1B worker × 1.45 

benefits-to-wage multiplier. See section V.A.5. for 

estimation of the benefits-to-wage multiplier. 211Hourly compensation of $91.47 = $63.08 

average hourly wage rate for Management 

Occupations (national) × 1.45 benefits-to-wage 

multiplier. See BLS, ‘‘Occupational Employment 

and Wage Statistics, Occupational Employment and 

Wages, May 2022, 11–0000 Management 

Occupations (Major Group),’’ https://www.bls.gov/ 

oes/2022/may/oes110000.htm (last visited May 11, 

2023). 

212 DHS assumes that beneficiary takes 50 percent 

of average inspection duration and supervisor or 

manager takes 50 percent. Average duration of 

interview hours for beneficiaries (0.54) = Average 

inspection duration (1.08) × 50% = 0.54 (rounded). 

Average duration of interview hours for Supervisors 

or managers (0.54) = Average inspection duration 

(1.08) × 50% = 0.54 (rounded). 

approximately $116,000 annually, or 

$55.77 hourly wage.209 The annual 

salary does not include noncash 

compensation and benefits, such as 

health insurance and transportation. 

DHS adjusts the average hourly wage 

rate using a benefits-to-wage multiplier 

to estimate the average hourly 

compensation of $ 80.87 for an H–1B 

nonimmigrant worker.210 In order to 

estimate the opportunity cost of time 

they would incur during a worksite 

inspection, DHS uses an average hourly 

compensation rate of $91.47 per hour 

for a supervisor or manager, where the 

average hourly wage is $63.08 per hour 

worked and average benefits are 

$28.39.211 While the average duration of 

time to conduct an inspection is 

estimated at 1.08 hours in this analysis, 

DHS is not able to estimate the average 

duration of time for a USCIS 

immigration officer to conduct an 

interview with a beneficiary or 

supervisor or manager. In the absence of 

this information, DHS assumes that it 

would on average take 0.54 hours to 

interview a beneficiary and 0.54 hours 

to interview a supervisor or manager.212

In Table 44, DHS estimates the total 

annual opportunity cost of time for 

worksite inspections of H–1B petitions 

by multiplying the average annual 

number of worksite inspections (7,252) 

by the average duration the interview 

would take for a beneficiary or 

supervisor or manager and their 

respective compensation rates. DHS 

obtains the total annual cost of the H– 

1B worksite inspections to be $674,881 

for this proposed rule. 

This proposed change may affect 

employers who do not cooperate with 

site visits who would face denial or 

revocation of their petition(s), which 

could result in costs to those businesses. 

Petitioners may face financial losses 

because they may lose access to labor 

for extended periods, which could 

result in too few workers, loss of 

revenue, and some could go out of 

business. DHS expects program 

participants to comply with program 

requirements, however, and notes that 

those that do not could experience 

significant impacts due to this proposed 

rule. DHS expects that the proposed rule 

would hold certain petitioners more 

accountable for violations, including 

certain findings of labor law and other 

violations, and would prevent 

registrations with false information from 

taking a cap number for which they are 

ineligible. 

p. Third-Party Placement (Codifying 

Defensor) 

In this proposed provision, in certain 

circumstances USCIS would look at the 

third party’s requirements for the 

beneficiary’s position, rather than the 

petitioner’s stated requirements, in 

assessing whether the proffered position 

qualifies as a specialty occupation. 

As required by both INA section 

214(i)(1) and 8 CFR 214.2(h)(4)(i)(A)(1), 

an H–1B petition for a specialty 

occupation worker must demonstrate 

that the worker will perform services in 

a specialty occupation, which requires 

theoretical and practical application of 

a body of highly specialized knowledge 

and attainment of a baccalaureate or 

higher degree in the specific specialty 

(or its equivalent) as a minimum 

requirement for entry into the 

occupation in the United States. This 

proposal would ensure that petitioners 

are not circumventing specialty 

occupation requirements by imposing 

token requirements or requirements that 

are not normal to the third party. 

Specifically, under proposed 8 CFR 

214.2(h)(4)(i)(B)(3), if the beneficiary 

will be staffed to a third party, meaning 

they will be contracted to fill a position 

in a third party’s organization, the 

actual work to be performed by the 

beneficiary must be in a specialty 

occupation. Therefore, it is the 

requirements of that third party, and not 

the petitioner, that are most relevant 

when determining whether the position 

is a specialty occupation. Relative to the 

no action baseline, this change has no 

costs associated with it, and there may 


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Table 44. Form 1-129 Petitioners' Annual Cost of Worksite Insnection for H-lB Workers 

Number of Average Worksite 

Cost Item Inspections Duration of Compensation Total Cost Interview Rate (Annual (Hours) Average) 

A B C D=AxBxC 

Beneficiaries' opportunity cost 

of time during worksite 7,252 0.54 $80.87 $316,693 

inspections 

Supervisors or managers' 

opportunity cost of time 7,252 0.54 $91.47 $358,188 

during worksite inspections 

Total - 1.08 - $674,881 

Source: USCIS analvsis 
Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 72947 

213See Instructions for Petition for a 

Nonimmigrant Worker (time burden estimate in the 

Paperwork Reduction Act section). Form I–129 H– 

1B, https://www.uscis.gov/sites/default/files/ 

document/forms/i-129.pdf. OMB No. 1615–1615– 

0009. Expires Nov. 30, 2025. The public reporting 

burden for this collection of information is 

estimated at 2 hours and 20 minutes (2.34 hours) 

per response. 

214The term ‘‘Form I–129 H–1B’’ refers to a Form 

I–129 that is filed for H–1B classification. 

215USCIS limited its analysis to HR specialists, 

in-house lawyers, and outsourced lawyers to 

present estimated costs. However, USCIS 

understands that not all entities employ individuals 

with these occupations and, therefore, recognizes 

equivalent occupations may also prepare and file 

these petitions. 216See BLS, ‘‘Occupational Employment and 

Wage Statistics, Occupational Employment and 

Wages, May 2022, 13–1071 Human Resources 

Specialists,’’ https://www.bls.gov/oes/2022/may/ 

oes131071.htm (last visited May 11, 2023). 217See BLS, ‘‘Occupational Employment and 

Wage Statistics, Occupational Employment and 

Wages, May 2022, 23–1011 Lawyers,’’ https://

www.bls.gov/oes/2022/may/oes231011.htm (last 

visited May. 11, 2023). 218The benefits-to-wage multiplier is calculated 

as follows: (Total Employee Compensation per 

hour)/(Wages and Salaries per hour) ($42.48 Total 

Employee Compensation per hour)/($29.32 Wages 

and Salaries per hour) = 1.44884 = 1.45 (rounded). 

See BLS, Economic News Release, ‘‘Employer Costs 

for Employee Compensation—December 2022,’’ 

Table 1. ‘‘Employer Costs for Employee 

Compensation by ownership [Dec. 2022],’’ https:// 

www.bls.gov/news.release/archives/ecec_

03172023.htm (last visited Mar. 21, 2023). The 

Employer Costs for Employee Compensation 

measures the average cost to employers for wages 

and salaries and benefits per employee hour 

worked. 

219Calculation: $35.13 * 1.45 = $50.94 total wage 

rate for HR specialist. 

220Calculation: $78.74 * 1.45 = $114.17 total 

wage rate for in-house lawyer. 

221Calculation: $78.74 * 2.5 = $196.85 total wage 

rate for an outsourced lawyer. 

be transparency benefits due to this 

proposed change. Relative to the pre 

policy baseline petitioners may have 

taken time to demonstrate that the 

worker will perform services in a 

specialty occupation, which requires 

theoretical and practical application of 

a body of highly specialized knowledge 

and attainment of a baccalaureate or 

higher degree in the specific specialty. 

Because this has been in place for a long 

time, DHS cannot estimate how much 

time it would have taken for petitioners 

to provide that information. 

q. Additional Time Burden for Form I– 

129 H–1B 

DHS estimates the current public 

reporting time burden is 2 hours and 20 

minutes (2.34 hours), which includes 

the time for reviewing instructions, 

gathering the required documentation 

and information, completing the 

petition, preparing statements, attaching 

necessary documentation, and 

submitting the petition.213 This 

proposed rule would increase the 

burden per response by 5 minutes. 

Table 45 shows the total receipts 

received for Form I–129 H–1B214 for FY 

2018 through FY 2022. The table also 

details the number of Form I–129 H–1B 

receipts filed with an attorney or 

accredited representative using Form G– 

28. The number of Form G–28 

submissions allows USCIS to estimate 

the number of Form I–129 H–1B that are 

filed by an attorney or accredited 

representative and thus estimate the 

opportunity costs of time for a 

petitioner, attorney, or accredited 

representative to file each form. USCIS 

received a low of 319,090 H–1B receipts 

filed with Form G–28 in FY 2021, and 

a high of 383,737, H–1B receipts filed 

with Form G–28 in FY 2022. Based on 

a 5-year annual average, DHS estimates 

the annual average receipts of Form I– 

129 to be 338,850 with 79 percent of 

petitions filed by an attorney or 

accredited representative. 

In order to estimate the opportunity 

costs of time for completing and filing 

Form I–129 H–1B, DHS assumes that a 

petitioner will use an HR specialist, an 

in-house lawyer, or an outsourced 

lawyer to prepare Form I–129 H–1B 

petitions.215 DHS uses the mean hourly 

wage of $35.13 for HR specialists to 

estimate the opportunity cost of the time 

for preparing and submitting Form I– 

129 H–1B.216 Additionally, DHS uses 

the mean hourly wage of $78.74 for inhouse lawyers to estimate the 

opportunity cost of the time for 

preparing and submitting Form I–129 

H–1B.217

DHS accounts for worker benefits 

when estimating the total costs of 

compensation by calculating a benefitsto-wage multiplier using the BLS report 

detailing the average employer costs for 

employee compensation for all civilian 

workers in major occupational groups 

and industries. DHS estimates that the 

benefits-to-wage multiplier is 1.45 and, 

therefore, is able to estimate the full 

opportunity cost per petitioner, 

including employee wages and salaries 

and the full cost of benefits such as paid 

leave, insurance, retirement, etc.218 DHS 

multiplied the average hourly U.S. wage 

rate for HR specialists and in-house 

lawyers by 1.45 to account for the full 

cost of employee benefits, for a total of 

$50.94 219 per hour for an HR specialist 

and $114.17 220 per hour for an in-house 

lawyer. DHS recognizes that a firm may 

choose, but is not required, to outsource 

the preparation of these petitions and, 

therefore, presents two wage rates for 

lawyers. To determine the full 

opportunity costs of time if a firm hired 

an outsourced lawyer, DHS multiplied 

the average hourly U.S. wage rate for 

lawyers by 2.5 for a total of $196.85 221

to approximate an hourly wage rate for 


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Table 45. Total Form 1-129 H-lB Receints with and without Form G-28 FY 2018 throul!h FY 2022 

Percentage of 

Form 1-129 H-lB Form 1-129 H-lB Total Form I- Form 1-129 

Fiscal Year Receipts Received Receipts Received 129 H-lB H-lB filed 

without Form G-28 with Form G-28 Receipts with Form G28 

2018 94 055 324 549 418 604 78% 

2019 90,845 329,777 420,622 78% 

2020 90 192 337 097 427 289 79% 

2021 79,195 319,090 398,285 80% 

2022 90,574 383,737 474,311 81% 

5-year Total 444,861 1,694,250 2,139,111 79% 

5-vear Annual Averal!e 88,972 338,850 427,822 79% 

Source: USCIS, Office of Policy and Strategy, PRD, CLAIMS3 and ELIS databases, Mar. 13, 2023. 
72948 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

222The DHS analysis in ‘‘Exercise of TimeLimited Authority To Increase the Fiscal Year 2018 

Numerical Limitation for the H–2B Temporary 

Nonagricultural Worker Program,’’ 83 FR 24905 

(May 31, 2018), https://www.federalregister.gov/ 

documents/2018/05/31/2018-11732/exercise-oftime-limited-authority-to-increase-the-fiscal-year2018-numerical-limitation-for-the, used a multiplier 

of 2.5 to convert in-house attorney wages to the cost 

of outsourced attorney wages. 

The DHS ICE rule ‘‘Final Small Entity Impact 

Analysis: ‘Safe-Harbor Procedures for Employers 

Who Receive a No-Match Letter’ ’’ at G–4 (Aug. 25, 

2008), https://www.regulations.gov/document/ 

ICEB-2006-0004-0922, also uses a multiplier. The 

methodology used in the Final Small Entity Impact 

Analysis remains sound for using 2.5 as a multiplier 

for outsourced labor wages in this proposed rule. 

223The DHS analysis in ‘‘Exercise of TimeLimited Authority To Increase the Fiscal Year 2018 

Numerical Limitation for the H–2B Temporary 

Nonagricultural Worker Program,’’ 83 FR 24905 

(May 31, 2018), https://www.federalregister.gov/ 

documents/2018/05/31/2018-11732/exercise-oftime-limited-authority-to-increase-the-fiscal-year2018-numerical-limitation-for-the, used a multiplier 

of 2.5 to convert in-house attorney wages to the cost 

of outsourced attorney wages. 

Also, the analysis for a DHS ICE rule, ‘‘Final 

Small Entity Impact Analysis: ‘Safe-Harbor 

Procedures for Employers Who Receive a No-Match 

Letter’ ’’ at G–4 (Aug. 25, 2008), https://

www.regulations.gov/document/ICEB-2006-0004- 

0922, used a multiplier. The methodology used in 

the Final Small Entity Impact Analysis remains 

sound for using 2.5 as a multiplier for outsourced 

labor wages in this proposed rule. 

224See ‘‘Instructions for Petition for a 

Nonimmigrant Worker,’’ Form I–129, OMB No. 

1615–0009, expires Nov. 30, 2025, https://

www.uscis.gov/sites/default/files/document/forms/ 

i-129instr.pdf (last visited Nov. 3, 2022). 

an outsourced lawyer 222 to prepare and 

submit Form I–129 H–1B.223

To estimate the opportunity cost of 

time to complete and file Form I–129 H– 

1B, DHS applies the estimated time 

burden (2.34 hours) to the eligible 

population and compensation rates of 

those who may file with or without a 

lawyer.224 Table 46 shows the estimated 

annual opportunity cost of time for 

Form I–129 H–1B petitioners employing 

an in-house or outsourced lawyer to 

complete and file Form I–129 H–1B 

petitions. DHS does not know the exact 

number of petitioners who will choose 

an in-house or an outsourced lawyer but 

assumes it may be a 50/50 split and 

therefore provides an average. DHS 

estimates that these current opportunity 

costs of time for Form I–129 H–1B 

petitioners using an attorney or other 

representative range from $90,526,421 

to $156,084,137 with an annual average 

of $123,305,279. 

BILLING CODE 9111–97–P 

To estimate the current remaining 

opportunity cost of time for an HR 

specialist filing Form I–129 H–1B 

without a lawyer, DHS applies the 

estimated public reporting time burden 

(2.34 hours) to the compensation rate of 

an HR specialist. Table 47 estimates the 

current total annual opportunity cost of 

time to HR specialists completing and 

filing I–129 H–1B requests will be 

approximately $10,605,427. 

Table 48 shows the proposed 

estimated time burden (2.42 hours) to 

the eligible population and 

compensation rates of those who may 

file with or without a lawyer. DHS does 

not know the exact number of 

petitioners who will choose an in-house 

or an outsourced lawyer but assumes it 

may be a 50/50 split and therefore 

provides an average. These current 

opportunity costs of time for Form I–129 

H–1B petitioners using an attorney or 

other representative are estimated to 

range from $93,621,341 to $161,420,346 

with an annual average of $127,520,844. 


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Table 46. Current Annual Average Opportunity Costs of Time for Form 1-129 H-lB Petitioners 

Filing with an Attorney or Other Representative 

Eligible Time Burden to Total Population of Complete Form Current Petitioners Cost of Time 

Filing with a 

1-129 H-lB Opportunity 

Lawver (Hours) Cost 

A B C D=(AxBxC) 

In House Lawver 338,850 2.34 $114.17 $90 526 421 

Outsourced Lawyer 338 850 2.34 $196.85 $156 084.137 

Avera2e $123,305,279 

Source: USCIS Analysis 

Table 47. Current Annual Average Opportunity Costs of Time for Form 1-129 H-lB Petitioners 

Filin2 without an Attornev or Accredited Reoresentative 

Time Burden to HR Specialist's Total Complete Form Population 1-129 H-lB Opportunity Cost Opportunity 

<Hours) of time Cost of Time 

A B C D=(AxBxC) 

Estimate Form 1-129 88,972 2.34 $50.94 $10,605,427 H-lB 

Source: USCIS Analysis 
Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 72949 

To estimate the current remaining 

opportunity cost of time for an HR 

specialist filing Form I–129 H–1B 

without a lawyer, DHS applies the 

estimated public reporting time burden 

(2.42 hours) to the compensation rate of 

an HR specialist. Table 49 estimates the 

current total annual opportunity cost of 

time to HR specialists completing and 

filing I–129 H–1B requests will be 

approximately $10,968,006. 

DHS estimates the total additional 

annual cost to petitioners completing 

and filing Form I–129 H–1B are 

expected to be $4,578,144 shown in 

Table 50. This table shows the current 

total opportunity cost of time to file 

Form I–129 H–1B and the proposed 

total opportunity cost of time. 

Finally, many DHS rulemakings 

include monetized or unquantified 

familiarization costs. This is appropriate 

when a likely consequence of proposed 

regulations could be additional 

individuals seeking out and consuming 

more specialized resources, such as 

immigration attorneys’ time in order to 

access the same benefits. This section 

has emphasized that employers of H–1B 

beneficiaries already consume 

significant specialized resources. In 

contrast to policies that impose 

additional requirements upon 

petitioners and registrants, DHS believes 

the proposed modernization, 

efficiencies, flexibilities and integrity 

improvements have no likely 

consequence to current consumption of 

specialized resources such as HR 

Specialists’ time, in-house attorneys’ 


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Table 48. New Annual Opportunity Costs of Time for Form 1-129 H-lB Petitioners Filing with an 

Attorney or Other Representative 

Population of Time Burden to Total Petitioners Complete Form Cost of Time Opportunity Filing with a 1-129 H-lB Cost Lawyer (Hours) 

A B C D=(AxBxC) 

In House Lawver 338,850 2.42 $114.17 $93,621,341 

Outsourced Lawver 338,850 2.42 $196.85 $161,420,346 

Avera2:e $127,520,844 

Source: USCIS Analysis 

Table 49. Proposed Annual Average Opportunity Costs of Time for Form 1-129 H-lB Petitioners 

Filine: without an Attorney or Accredited Representative 

Time Burden to HR Specialist's Total Complete Form Population 1-129 H-lB Opportunity Cost Opportunity 

<Hours) of time Cost of Time 

A B C D=(AxBxC) 

Estimate Form 1-129 88,972 2.42 $50.94 $10,968,006 H-lB 

Source: USCIS Analysis 

Table 50. Total Annual Costs to Form 1-129 H-lB 

Average Current Opportunity Cost Time for Lawyers to $123,305,279 Comolete Form 1-129 H-lB 

Average Current Opportunity Cost Time for HR Specialist to $10,605,427 Complete Form 1-129 H-lB 

Total $133,910,706 

Average Proposed Opportunity Cost Time for Lawyers to $127,520,844 Complete Form 1-129 H-lB 

Average Proposed Opportunity Cost Time for HR Specialist $10,968,006 to Complete Form 1-129 H-lB 

Total $138,488,850 

Proposed Additional Opportunity Costs of Time for Form $4,578,144 1-129 H-lB 

Source: USCIS Analysis 
72950 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

225See Instructions for Petition for a 

Nonimmigrant Worker (time burden estimate in the 

Paperwork Reduction Act section). Form I–129 H 

Classification Supplement, https://www.uscis.gov/ 

sites/default/files/document/forms/i-129.pdf. OMB 

No. 1615–1615–0009. Expires Nov. 30, 2025. The 

public reporting burden for this collection of 

information is estimated at 2 hours (2.0 hours) per 

response. 

time, and even out-sourced attorneys 

time inclusive of indirect costs. An 

assumption that hundreds of thousands 

will spend 4 or more hours reading the 

entirety of this proposed rule, in 

addition to the 2.42 hour burden of 

Form I–129 H–1B, risks 

overrepresenting the interests of 

immigration attorneys relative to the 

other impacts this Regulatory Impact 

Analysis describes using supporting 

data and evidence. DHS invites public 

comment on familiarization costs and 

how any such costs should be 

accurately modeled. 

r. Additional Time Burden for H 

Classification Supplement to Form I– 

129 

DHS estimates the current public 

reporting time burden at 2 hours, for the 

H Classification Supplement, which 

includes the time for reviewing 

instructions, gathering the required 

documentation and information, 

completing the petition, preparing 

statements, attaching necessary 

documentation, and submitting the 

petition.225 This proposed rule would 

strengthen program integrity by 

codifying the authority to request 

contracts from petitioners. This change 

will increase the burden per response 5 

minutes. 

Table 51 shows the total receipts 

received for H–1B petitions for FY 2018 

through FY 2022. The table also shows 

the number of H–1B petitions submitted 

by an attorney or accredited 

representative using Form G–28. The 

number of Form G–28 submissions 

allows USCIS to estimate the number of 

H–1B petitions that an attorney or 

accredited representative submitted and 

thus estimate the opportunity costs of 

time for an attorney or accredited 

representative to file each form USCIS 

received a low of 398,285 of H–1B 

petitions in FY 2021, and a high of 

474,311 of H–1B petitions in FY 2022. 

Based on a 5-year annual average, DHS 

estimates the annual average receipts of 

H–1B petitions to be 338,850 with 79 

percent of petitions filed by an attorney 

or accredited representative. 

Table 52 shows the estimated annual 

opportunity cost of time for submitting 

an H–1B petition employing an in-house 

or outsourced lawyer to complete and 

submit an H–1B petition. DHS does not 

know the exact number of petitioners 

who will choose an in-house or an 

outsourced lawyer but assumes it may 

be a 50/50 split and therefore provides 

an average. DHS estimates that these 

current annual opportunity costs of time 

for filing an H–1B petition using an 

attorney or other representative range 

from $77,373,009 to $133,405,245 with 

an average of $105,389,127. 

To estimate the current remaining 

opportunity cost of time for an HR 

specialist filing Form I–129 H–1B 

without a lawyer, DHS applies the 

estimated public reporting time burden 

(2 hours) to the compensation rate of an 

HR specialist. Table 53 estimates the 

current total annual opportunity cost of 

time to HR specialists completing and 


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Table 51. Total H-lB Petitions with and without Form G-28, FY 2018 throu2:h FY 2022 

Form 1-129 H-lB Form 1-129 H- Total Form Percentage of 

Fiscal Year Receipts Received 1B Receipts 1-129 H-lB Form 1-129 HReceived with 1B filed with without Form G-28 Form G-28 Receipts Form G-28 

2018 94,055 324 549 418 604 78% 

2019 90,845 329 777 420 622 78% 

2020 90.192 337 097 427 289 79% 

2021 79,195 319 090 398 285 80% 

2022 90,574 383 737 474 311 81% 

5-year Total 444,861 1,694,250 2,139,111 79% 

5-vear Annual Avera2:e 88,972 338,850 427,822 79% 

Source: USCIS, Office of Policy and Strategy, PRD, CLAIMS3 and ELIS databases, Mar. 13, 2023. 

Table 52. Current Annual Average Opportunity Costs of Time for Filing an H-lB H Supplement 

Filin2: with an Attorney or Other Representative 

Population Time Burden to of Complete Form I- Total Current 

Petitioners Cost of Time Opportunity 

Filing with 129 H Supplement Cost 

a Lawver (Hours) 

A B C D=(AxBxC) 

In House Lawyer 338 850 2 $114.17 $77 373 009 

Outsourced 338,850 2 $196.85 $133,405,245 Lawver 

Average $105,389,127 

Source: USCIS Analvsis 
Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 72951 

filing an H–1B petition will be 

approximately $9,064,467. 

Table 54 shows the proposed 

increased estimated time burden of 2 

hours and 4 minutes (2.07 hours) to the 

eligible population and compensation 

rates of those who may file with or 

without a lawyer. DHS does not know 

the exact number of petitioners who 

will choose an in-house or an 

outsourced lawyer but assumes it may 

be a 50/50 split and therefore provides 

an average. DHS estimates that these 

current annual opportunity costs of time 

for filing an H–1B petition using an 

attorney or other representative range 

from $80,081,064 to $138,074,429 with 

an average of $109,077,747. 

To estimate the current remaining 

opportunity cost of time for an HR 

specialist filing Form I–129 H–1B 

without a lawyer, DHS applies the 

estimated public reporting time burden 

(2.07 hours) to the compensation rate of 

an HR specialist. Table 55 estimates the 

current total annual opportunity cost of 

time to HR specialists completing and 

filing an H–1B petition will be 

approximately $9,381,724. 

DHS estimates the total additional 

annual cost to petitioners completing 

and filing Form I–129 H–1B are 

expected to be $4,005,877 shown in 

Table 56. This table shows the current 

total opportunity cost of time to file an 

H–1B H Supplement and the proposed 

total opportunity cost of time. 


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Table 53. Current Average Opportunity Costs of Time for Filing an H-lB H Supplement Filing 

without an Attornev or Accredited Reoresentative 

Time Burden to 

Complete Form HR Specialist's Total 

Population 1-129 H-lB H Opportunity Cost Opportunity 

Supplement of time Cost of Time 

(Hours) 

A B C D=(AxBxC) 

Estimate Form 1-129 88,972 2 $50.94 $9,064,467 H-lB H Suoolement 

Source: USCIS Analysis 

Table 54. New Annual Opportunity Costs of Time for Form 1-129 H-lB H Supplement Petitioners Filing 

with an Attornev or Other Reoresentative 

Eligible Time Burden to 

Population of Complete Form I- Total 

Petitioners 129 H-lB H Cost of Time Opportunity 

Filing with a Supplement Cost 

Lawyer <Hours) 

A B C D=(AxBxC) 

In House Lawyer 338,850 2.07 $114.17 $80,081,064 

Outsourced Lawver 338,850 2.07 $196.85 $138,074,429 

Average $109,077,747 

Source: USCIS Analysis 

Table 55. Proposed Annual Average Opportunity Costs of Time for Form 1-129 H-lB H Supplement 

Petitioners Filing without an Attorney or Accredited Reoresentative 

Time Burden to 

Complete Form HR Specialist's Total 

Population 1-129 H-lB H Opportunity Cost Opportunity 

Supplement of time Cost of Time 

(Hours) 

A B C D=(AxBxC) 

Estimate Form 1-129 H- 88,972 2.07 $50.94 $9,381,724 1B H Sunnlement 

Source: USCIS Analysis 
72952 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

4. Alternatives Considered 

DHS considered the alternative of 

eliminating the registration system and 

reverting to the paper-based filing 

system stakeholders used prior to 

implementing registration. However, 

when DHS considered the immense cost 

savings that registration provides to 

both USCIS and stakeholders and the 

significant resources the agency would 

incur to revert back to a paper-based H– 

1B cap selection process, the benefits of 

having a registration system still 

outweigh the costs of potential abuse of 

the system. 

DHS is also seeking public comment 

on how to ensure that the limited 

number of H–1B cap-subject visas, and 

new H–1B status grants available each 

fiscal year are used for non-speculative 

job opportunities. DHS is seeking public 

comments on the possible approaches 

described in the preamble, as well as 

soliciting ideas that would further curb 

or eliminate the possibility that 

petitioners may have speculative job 

opportunities at the time of filing or 

approval of H–1B petitions and delay 

admission of H–1B beneficiaries until 

they have secured work for them. 

5. Total Quantified Net Costs of the 

Proposed Regulatory Changes 

In this section, DHS presents the total 

annual cost savings of this proposed 

rule annualized over a 10-year period of 

analysis. Table 57 details the annual 

cost savings of this proposed rule. DHS 

estimates the total cost savings is 

$5,920,408. 

DHS summarizes the annual costs of 

this proposed rule. Table 58 details the 

annual costs of this proposed rule. DHS 

estimates the total cost is $12,260,187. 


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Table 56. Total Annual Costs to Form 1-129 H-lB H Supplement 

Average Current Opportunity Cost Time for Lawyers to Complete Form 1-129 H-lB $105,389,127 H Supplement 

Average Current Opportunity Cost Time for HR Specialist to Complete Form 1-129 $9,064,467 H-lB H Suoolement 

Total $114,453,594 

Average Proposed Opportunity Cost Time for Lawyers to Complete Form 1-129 H- $109,077,747 

1B H Suoolement 

Average Proposed Opportunity Cost Time for HR Specialist to Complete Form 1-129 $9,381,724 

H-lB H Suoolement 

Total $118,459,471 

Proposed Additional Opportunity Costs of Time for Form 1-129 H-lB H $4,005,877 Suoolement 

Source: USCIS Analysis 

Table 57. Summary of Cost Savings 

Description Cost Savings 

Amended Petitions $297,673 

Deference to prior USCIS Determinations of Eligibility $338,412 

Eliminating the Itinerary Requirement for H Programs $708,491 

Beneficiary Centric Selection Cost of Time $3,840,822 

Beneficiary Centric Selection Cost of Registrations $735,010 

Total Cost Savings $5,920,408 

Source: USCIS Analysis 

Table 58. Summary of Costs 

Description Costs 

The H-lB Registration System $3,001,285 

Cost of W orksite Inspection for H-lB Workers $674,881 

Additional Time Burden H-lB $4,578,144 

Additional Time Burden for H Classification Supplement $4,005,877 

Total Costs $12,260,187 

Source: USCIS Analysis 
Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 72953 

226Calculations: $12,260,187 Total 

Costs¥$5,920,217 Total Cost Savings = $6,339,779 

Net Costs. 

227A small business is defined as any 

independently owned and operated business not 

dominant in its field that qualifies as a small 

business per the Small Business Act, 15 U.S.C. 632. 

228See Small Business Administration, A Guide 

For Government Agencies, How to Comply with the 

Regulatory Flexibility Act. https://

advocacy.sba.gov/wp-content/uploads/2019/06/ 

How-to-Comply-with-the-RFA.pdf (last visited Aug. 

23 2023). 

Net costs to the public of $6,339,779 

are the total costs minus cost savings.226

Table 59 illustrates that over a 10-year 

period of analysis from FY 2023 through 

FY 2032 annualized costs would be 

$6,339,779 using 7-percent and 3- 

percent discount rates. 

BILLING CODE 9111–97–C 

B. Regulatory Flexibility Act (RFA) 

1. Initial Regulatory Flexibility Analysis 

The Regulatory Flexibility Act of 1980 

(RFA), 5 U.S.C. 601 and 602, as 

amended by the Small Business 

Regulatory Enforcement Fairness Act of 

1996, Public Law 104–121, requires 

Federal agencies to consider the 

potential impact of regulations on small 

businesses, small governmental 

jurisdictions, and small organizations 

during the development of their rules. 

The term ‘‘small entities’’ comprises 

small businesses, not-for-profit 

organizations that are independently 

owned and operated and are not 

dominant in their fields, and 

governmental jurisdictions with 

populations of less than 50,000.227

An ‘‘individual’’ is not considered a 

small entity and costs to an individual 

are not considered a small entity impact 

for RFA purposes. In addition, the 

courts have held that the RFA requires 

an agency to perform a regulatory 

flexibility analysis of small entity 

impacts only when a rule directly 

regulates small entities.228

Consequently, indirect impacts from a 

rule on a small entity are not considered 

as costs for RFA purposes. 

a. USCIS’s RFA analysis for this 

proposed rule focuses on the population 

of Form I–129 petitions for H–1B 

workers. Where cost savings occur from 

multiple registrants no longer 

registering on behalf of a common 

beneficiary, either deliberately or 

inadvertently, USCIS is unable to 

quantify the portion of potential cost 

savings accruing to small entities. Some 

of these cost savings may be partially 

offset by the advantage multiple 

registrations conferred over single, 

unique registrants, but it is ambiguous 

whether such small entities enjoy this 

advantage or feel increasingly 

compelled to do this by their belief that 

other lottery competitors are doing so. A 

Description of the Reasons Why the 

Action by the Agency Is Being 

Considered 

The purpose of this rulemaking is to 

modernize and improve the regulations 

relating to the H–1B program by: (1) 

streamlining the requirements of the H– 

1B program; (2) improving program 

efficiency; (3) providing greater 

flexibility for petitioners and 

beneficiaries; and (4) improving 

integrity measures. 

b. A Statement of the Objectives of, and 

Legal Basis for, the Proposed Rule 

DHS’s objectives and legal authority 

for this proposed rule are discussed 

earlier in the preamble. 

c. A Description and, Where Feasible, 

an Estimate of the Number of Small 

Entities to Which the Proposed Changes 

Would Apply 

For this analysis, DHS conducted a 

sample analysis of historical Form I–129 

H–1B petitions to estimate the number 

of small entities impacted by this 

proposed rule. DHS utilized a 

subscription-based electronic database 

of U.S. entities, ReferenceUSA, as well 

as three other open-access, free 

databases of public and private entities, 

Manta, Cortera, and Guidestar to 

determine the North American Industry 

Classification System (NAICS) code, 

revenue, and employee count for each 

entity. To determine whether an entity 

is small for purposes of RFA, DHS first 

classified the entity by its NAICS code 

and then used Small Business 

Administration (SBA) guidelines to 

classify the revenue or employee count 

threshold for each entity. Some entities 

were classified as small based on their 

annual revenue, and some by their 

numbers of employees. 

Using FY 2022 internal data on actual 

filings of Form I–129 H–1B petitions, 

DHS identified 44,593 unique entities. 

DHS devised a methodology to conduct 

the small entity analysis based on a 

representative, random sample of the 

potentially impacted population. DHS 

first determined the minimum sample 

size necessary to achieve a 95-percent 


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Table 59. Discounted Net Costs Over a 10-Year Period of Analysis 

Total Estimated Cost 

Fiscal Year $6,339,779 (U ndiscounted) 

Discounted at 3 percent Discounted at 7 percent 

2023 $6,155,125 $5,925,027 

2024 $5,975,850 $5,537,409 

2025 $5,801,796 $5,175,148 

2026 $5,632,812 $4,836,587 

2027 $5,468,749 $4,520,175 

2028 $5,309,465 $4,224,462 

2029 $5,154,820 $3,948,096 

2030 $5,004,680 $3,689,809 

2031 $4,858,913 $3,448,420 

2032 $4,717,391 $3,222,822 

10-vear Total $54,079,601 $44,527,955 

Annualized Cost $6,339,779 $6,339,779 
72954 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

229The annual numeric estimate of the small 

entities (37,815) = Population (44,593) * Percentage 

of small entities (84.8%). 

230The economic impact, in percentage, for each 

small entity i = ((Cost of one petition for entity i 

× Number of petitions for entity i)/Entity i’s sales 

revenue) × 100. 

The cost of one petition for entity i ($14.82) is 

estimated by dividing the total cost of this proposed 

rule by the estimated population. $6,339,779/ 

427,822 = $14.82. 

The entity’s sales revenue is taken from 

ReferenceUSA, Manta, Cortera, and Guidestar 

databases. 

confidence level confidence interval 

estimation for the impacted population 

of entities using the standard statistical 

formula at a 5-percent margin of error. 

DHS then created a sample size greater 

than the minimum necessary to increase 

the likelihood that our matches would 

meet or exceed the minimum required 

sample. 

DHS randomly selected a sample of 

3,396 entities from the population of 

44,593 entities that filed Form I–129 for 

H–1B petitions in FY 2022. Of the 3,396 

entities, 1,724 entities returned a 

successful match of a filing entity in the 

ReferenceUSA, Manta, Cortera, and 

Guidestar databases; 1,672 entities did 

not return a match. Using these 

databases’ revenue or employee count 

and their assigned NAICS code, DHS 

determined 1,209 of the 1,724 matches 

to be small entities, 515 to be non-small 

entities. DHS assumes filing entities 

without database matches or missing 

revenue/employee count data are likely 

to be small entities. As a result, in order 

to prevent underestimating the number 

of small entities this proposed rule 

would affect, DHS considers all the nonmatched and missing entities as small 

entities for the purpose of this analysis. 

Therefore, DHS classifies 2,881 of 3,396 

entities as small entities, including 

combined non-matches (1,672), and 

small entity matches (1,209). Thus, DHS 

estimates that 84.8 percent (2,881 of 

3,396) of the entities filing Form I–129 

H–1B petitions are small entities. 

In this analysis DHS assumes that the 

distribution of firm size for our sample 

is the same as the entire population of 

Form I–129 H–1B petitioners. Thus, 

DHS estimates the number of small 

entities to be 84.8 percent of the 

population of 44,593 entities that filed 

Form I–129 under the H–1B 

classification, as summarized in Table 

60 below. The annual numeric estimate 

of the small entities impacted by this 

proposed rule is 37,815 entities.229

It should be acknowledged here that 

DHS’s sample frame excludes H–2 

petitioners identified by the RIA as 

benefitting from the proposal to no 

longer require itineraries, because this 

requirement has no adverse impacts to 

small entities and DHS has not 

identified opportunities to further 

enhance this benefit to small entities. 

Similarly, the proposal to codify 

deference has no adverse impacts to 

small entities. Additionally, while the 

proposed clarity for evidence of 

maintenance of status may indirectly 

impact small entities filing such 

petitions and applications, the costs and 

benefits fall predominantly and more 

directly upon the individuals. 

Following the distributional 

assumptions above, DHS uses the set of 

1,209 small entities with matched 

revenue data to estimate the economic 

impact of the proposed rule on each 

small entity. The economic impact, in 

percentage, for each small entity is the 

sum of the impacts of the proposed 

changes divided by the entity’s sales 

revenue.230 DHS constructed the 

distribution of economic impact of the 

proposed rule based on the sample of 

1,209 small entities. USCIS multiplied 

the proposed increase in cost per 

petition by the number of petitions filed 

by a small entity in FY22 to estimate the 

increase in cost to that small entity. 

USCIS then divided the increase in cost 

to that small entity by the annual 

revenue generated by that small entity. 

The average number of petitions filed 

per small entity was 10.3. Consequently, 

the average quantified increase per 

small entity was $152.43. Based on FY 

2022 revenue, of the 1,209 small 

entities, 0 percent (0 small entities) 

would experience a cost increase that is 

greater than 1 percent of revenues. 

In addition to the quantitated costs to 

small entities, employers who do not 

cooperate with site visits who would 

face denial or revocation of their 

petition(s), which could result in costs 

to those businesses. 

d. A Description of the Projected 

Reporting, Recordkeeping, and Other 

Compliance Requirements of the 

Proposed Rule, Including an Estimate of 

the Classes of Small Entities That Will 

Be Subject to the Requirement and the 

Types of Professional Skills 

The proposed beneficiary-centric 

selection process would result in 

additional burden to employers 

reporting beneficiaries’ passport 

information in the registration system, 

on Form I–129 H–1B petition and on H 

Classification Supplement to Form I– 

129. DHS estimates increase for each of 

these respective burdens is 5 minutes. 

e. An Identification of All Relevant 

Federal Rules, to the Extent Practical, 

That May Duplicate, Overlap, or 

Conflict With the Proposed Rule 

DHS is unaware of any duplicative, 

overlapping, or conflicting Federal 

rules, but invites any comment and 

information regarding any such rules. 

f. A Description of Any Significant 

Alternatives to the Proposed Rule That 

Accomplish the Stated Objectives of 

Applicable Statutes and That Minimize 

Any Significant Economic Impact of the 

Proposed Rule on Small Entities 

With respect to beneficiary-centric 

lottery, there are no burdens to be 

minimized. While collection of passport 

information imposes some burden to 

prospective employers, USCIS found no 

other alternatives that achieved stated 

objectives with less burden to small 

entities. 

C. Unfunded Mandates Reform Act of 

1995 (UMRA) 

The Unfunded Mandates Reform Act 

of 1995 (UMRA) is intended, among 

other things, to curb the practice of 

imposing unfunded Federal mandates 

on State, local, and tribal governments. 

Title II of UMRA requires each Federal 

agency to prepare a written statement 

assessing the effects of any Federal 

mandate in a proposed rule, or final rule 

for which the agency published a 


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Table 60. Number of Small Entities for Form 1-129 for H-lB, FY 2022 

Population Number of Small Proportion of Population 

Entities (Percent) 

44,593 37,815 84.8% 
Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 72955 

231See 2 U.S.C. 1532(a). 

232See BLS, ‘‘Historical Consumer Price Index for 

All Urban Consumers (CPI–U): U.S. city average, all 

items, by month,’’ www.bls.gov/cpi/tables/ 

supplemental-files/historical-cpi-u-202212.pdf (last 

visited Jan. 19, 2023). Calculation of inflation: (1) 

Calculate the average monthly CPI–U for the 

reference year (1995) and the current year (2022); 

(2) Subtract reference year CPI–U from current year 

CPI–U; (3) Divide the difference of the reference 

year CPI–U and current year CPI–U by the reference 

year CPI–U; (4) Multiply by 100 = [(Average 

monthly CPI–U for 2022 ¥ Average monthly CPI– 

U for 1995)/(Average monthly CPI–U for 

1995)]*100=[(292.655–152.383)/ 

152.383]*100=(140.272/ 

152.383)*100=0.92052263*100=92.05 percent = 92 

percent (rounded). Calculation of inflation-adjusted 

value: $100 million in 1995 dollars*1.92=$192 

million in 2022 dollars. 

233The term ‘‘Federal mandate’’ means a Federal 

intergovernmental mandate or a Federal private 

sector mandate. See 2 U.S.C. 1502(1), 658(6). 

234See Public Law 91–190, 42 U.S.C. 4321 

through 4347. 

235See DHS, ‘‘Implementing the National 

Environmental Policy Act,’’ DHS Directive 023–01, 

Rev 01 (Oct. 31, 2014), and DHS Instruction Manual 

Rev. 01 (Nov. 6, 2014), https://www.dhs.gov/ 

publication/directive-023-01-rev-01-andinstruction-manual-023-01-001-01-rev-01-andcatex. 

236See 40 CFR parts 1500 through 1508. 

237See 40 CFR 1501.4(a). 

238See Instruction Manual, section V.B.2 (a–c). 

proposed rule, that includes any Federal 

mandate that may result in a $100 

million or more expenditure (adjusted 

annually for inflation) in any one year 

by State, local, and tribal governments, 

in the aggregate, or by the private 

sector.231

In addition, the inflation-adjusted 

value of $100 million in 1995 is 

approximately $192 million in 2022 

based on the Consumer Price Index for 

All Urban Consumers (CPI–U).232 This 

proposed rule does not contain a 

Federal mandate as the term is defined 

under UMRA.233 The requirements of 

title II of UMRA, therefore, do not 

apply, and DHS has not prepared a 

statement under UMRA. 

D. Executive Order 13132 (Federalism) 

This proposed rule would not have 

substantial direct effects on the States, 

on the relationship between the 

National Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, it is determined that this 

proposed rule does not have sufficient 

federalism implications to warrant the 

preparation of a federalism summary 

impact statement. 

E. Executive Order 12988: Civil Justice 

Reform 

This proposed rule was drafted and 

reviewed in accordance with E.O. 

12988, Civil Justice Reform. This 

proposed rule was written to provide a 

clear legal standard for affected conduct 

and was carefully reviewed to eliminate 

drafting errors and ambiguities, so as to 

minimize litigation and undue burden 

on the Federal court system. DHS has 

determined that this proposed rule 

meets the applicable standards provided 

in section 3 of E.O. 12988. 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

This proposed rule does not have 

‘‘tribal implications’’ because, if 

finalized, it would not have substantial 

direct effects on one or more Indian 

Tribes, on the relationship between the 

Federal Government and Indian Tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. 

Accordingly, E.O. 13175, Consultation 

and Coordination with Indian Tribal 

Governments, requires no further 

agency action or analysis. 

G. National Environmental Policy Act 

(NEPA) 

DHS and its components analyze 

proposed actions to determine whether 

the National Environmental Policy Act 

(NEPA) 234 applies to them and, if so, 

what degree of analysis is required. DHS 

Directive 023–01, Rev. 01 (Directive) 

and Instruction Manual 023–01–001–01, 

Rev. 01 (Instruction Manual) 235

establish the procedures DHS and its 

components use to comply with NEPA 

and the Council on Environmental 

Quality (CEQ) regulations for 

implementing NEPA.236 The CEQ 

regulations allow Federal agencies to 

establish in their NEPA implementing 

procedures categories of actions 

(‘‘categorical exclusions’’) that 

experience has shown normally do not 

individually or cumulatively have a 

significant effect on the human 

environment and, therefore, do not 

require preparation of an Environmental 

Assessment or Environmental Impact 

Statement.237 Instruction Manual, 

Appendix A, Table 1 lists the DHS 

categorical exclusions. 

Under DHS NEPA implementing 

procedures, for an action to be 

categorically excluded, it must satisfy 

each of the following three conditions: 

(1) The entire action clearly fits within 

one or more of the categorical 

exclusions; (2) the action is not a piece 

of a larger action; and (3) no 

extraordinary circumstances exist that 

create the potential for a significant 

environmental effect.238

As discussed throughout this 

preamble, this rulemaking includes a 

number of proposed regulatory 

improvements affecting H–1B specialty 

occupation workers, as well as a couple 

of provisions affecting other 

nonimmigrant classifications, including: 

H–2, H–3, F–1, L–1, O, P, Q–1, R–1, E– 

3, and TN. If finalized, this proposed 

rule is intended to modernize and 

improve the efficiency of the H–1B 

program by: (1) amending the definition 

of a ‘‘specialty occupation’’ and the 

specialty occupation criteria; (2) 

clarifying when to file an amended 

petition; (3) codifying deference given to 

prior USCIS determinations regarding 

the petitioner’s, beneficiary’s, or 

applicant’s eligibility, when 

adjudicating certain extension requests 

(both H–1B and other nonimmigrant 

classifications) involving the same 

parties and the same underlying facts; 

(4) clarifying when a petitioner is 

required to submit evidence of 

maintenance of status; (5) eliminating 

the itinerary requirement for H 

nonimmigrant classifications; and (6) 

allowing H–1B petitioners to amend 

requested validity periods when the 

validity expires before adjudication. If 

finalized, this rulemaking will also 

modernize exemptions from the H–1B 

cap, extend automatic ‘‘cap-gap’’ 

extensions, and codify start date 

flexibility for certain cap-subject H–1B 

petitions. In addition, any final rule 

resulting from this NPRM will improve 

program integrity by curbing abuse of 

the H–1B registration process, including 

through beneficiary-centric selection; 

codifying USCIS’s authority to request 

contracts; requiring that the petitioner 

establish that it will employ the 

beneficiary in a non-speculative 

position in a specialty occupation; 

verifying that the LCA corresponds with 

the petition; revising the definition of 

U.S. employer; eliminating the 

employer-employee relationship 

requirement; codifying the existing 

requirement that the petitioner have a 

bona fide job offer for the beneficiary to 

work within the United States; requiring 

that petitioners have a legal presence in 

the United States and be amenable to 

service of process in the United States; 

clarifying that beneficiary-owners may 

qualify for H–1B status; conducting site 

visits; and codifying the requirement 

that the specialty occupation 

determination be assessed based on the 

third party, rather than the petitioner, if 

a beneficiary will be staffed to a third 

party. 

DHS is not aware of any significant 

impact on the environment, or any 

change in the environmental effect from 


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72956 Federal Register / Vol. 88, No. 203 / Monday, October 23, 2023 / Proposed Rules 

current H–1B and other impacted 

nonimmigrant program rules, that will 

result from the proposed rule changes. 

DHS therefore finds this proposed rule 

clearly fits within categorical exclusion 

A3 established in the Department’s 

implementing procedures. 

The proposed amendments, if 

finalized, would be stand-alone rule 

changes and are not a part of any larger 

action. In accordance with the 

Instruction Manual, DHS finds no 

extraordinary circumstances associated 

with the proposed rules that may give 

rise to significant environmental effects 

requiring further environmental analysis 

and documentation. Therefore, this 

action is categorically excluded and no 

further NEPA analysis is required. 

H. Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995 (PRA), 44 U.S.C. 3501–12, DHS 

must submit to OMB, for review and 

approval, any reporting requirements 

inherent in a rule unless they are 

exempt. 

DHS and USCIS invite the general 

public and other Federal agencies to 

comment on the impact to the proposed 

collection of information. In accordance 

with the PRA, the information 

collection notice is published in the 

Federal Register to obtain comments 

regarding the proposed edits to the 

information collection instrument. 

Comments are encouraged and will be 

accepted for 60 days from the 

publication date of the proposed rule. 

All submissions received must include 

the agency name and OMB Control 

Number 1615–0144 and/or 1615–0009 

in the body of the letter. Please refer to 

the ADDRESSES and I. Public 

Participation section of this proposed 

rule for instructions on how to submit 

comments. Comments on this 

information collection should address 

one or more of the following four points: 

(1) Evaluate whether the collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information will have practical utility; 

(2) Evaluate the accuracy of the 

agency’s estimate of the burden of the 

collection of information, including the 

validity of the methodology and 

assumptions used; 

(3) Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

(4) Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. 

H–1B Registration Tool (OMB Control 

No. 1615–0144) 

(1) Type of Information Collection: 

Revision of a Currently Approved 

Collection. 

(2) Title of the Form/Collection: H–1B 

Registration Tool. 

(3) Agency form number, if any, and 

the applicable component of DHS 

sponsoring the collection: OMB–64; 

USCIS. 

(4) Affected public who will be asked 

or required to respond, as well as a brief 

abstract: Primary: Business or other forprofit. USCIS uses the data collected on 

this form to determine which employers 

will be informed that they may submit 

a USCIS Form I–129, Petition for 

Nonimmigrant Worker, for H–1B 

classification. 

(5) An estimate of the total number of 

respondents and the amount of time 

estimated for an average respondent to 

respond: The estimated total number of 

respondents for the information 

collection H–1B Registration Tool 

(Businesses) is 20,950 and the estimated 

hour burden per response is 0.6 hours. 

The estimated total number of 

respondents for the information 

collection H–1B Registration Tool 

(Attorneys) is 19,339 and the estimated 

hour burden per response is 0.6 hours. 

The total number of responses (355,590) 

is estimated by averaging the total 

number of registrations received during 

the H–1B cap fiscal years 2021, 2022, 

and 2023. 

(6) An estimate of the total public 

burden (in hours) associated with the 

collection: The total estimated annual 

hour burden associated with this 

collection of information is 213,354 

hours. 

(7) An estimate of the total public 

burden (in cost) associated with the 

collection: The estimated total annual 

cost burden associated with this 

collection of information is $0. 

Form I–129 (OMB Control No. 1615– 

0009) 

(1) Type of Information Collection: 

Revision of a Currently Approved 

Collection. 

(2) Title of the Form/Collection: 

Petition for Nonimmigrant Worker. 

(3) Agency form number, if any, and 

the applicable component of DHS 

sponsoring the collection: I–129, E–1/E– 

2 Classification Supplement, Trade 

Agreement Supplement, H 

Classification Supplement, H–1B and 

H–1B1 Data Collection and Filing 

Exemption Supplement, L Classification 

Supplement, O and P Classification 

Supplement, Q–1 Classification 

Supplement, and R–1 Classification 

Supplement; USCIS. 

(4) Affected public who will be asked 

or required to respond, as well as a brief 

abstract: Primary: Business or other forprofit. USCIS uses Form I–129 and 

accompanying supplements to 

determine whether the petitioner and 

beneficiary(ies) is (are) eligible for the 

nonimmigrant classification. A U.S. 

employer, or agent in some instances, 

may file a petition for nonimmigrant 

worker to employ foreign nationals 

under the following nonimmigrant 

classifications: H–1B, H–2A, H–2B, H– 

3, L–1, O–1, O–2, P–1, P–2, P–3, P–1S, 

P–2S, P–3S, Q–1, or R–1 nonimmigrant 

worker. The collection of this 

information is also required from a U.S. 

employer on a petition for an extension 

of stay or change of status for E–1, E– 

2, E–3, Free Trade H–1B1 Chile/ 

Singapore nonimmigrants and TN 

(USMCA workers) who are in the 

United States. 

(5) An estimate of the total number of 

respondents and the amount of time 

estimated for an average respondent to 

respond: The estimated total number of 

respondents for the information 

collection I–129 is 294,751 and the 

estimated hour burden per response is 

2.42 hours. The estimated total number 

of respondents for the information 

collection E–1/E–1 Classification 

Supplement is 4,760 and the estimated 

hour burden per response is 0.67 hours. 

The estimated total number of 

respondents for the information 

collection Trade Agreement Supplement 

is 3,057 and the estimated hour burden 

per response is 0.67 hours. The 

estimated total number of respondents 

for the information collection H 

Classification is 96,291 and the 

estimated hour burden per response is 

2.07 hours. The estimated total number 

of respondents for the information 

collection H–1B and H–1B1 Data 

Collection and Filing Fee Exemption 

Supplement is 96,291 and the estimated 

hour burden per response is 1 hour. The 

estimated total number of respondents 

for the information collection L 

Classification Supplement is 37,831 and 

the estimated hour burden per response 

is 1.34 hour. The estimated total number 

of respondents for the information 

collection O and P Classification 

Supplement is 22,710 and the estimated 

hour burden per response is 1 hour. The 

estimated total number of respondents 

for the information collection Q–1 

Classification Supplement is 155 and 

the estimated hour burden per response 

is 0.34 hours. The estimated total 

number of respondents for the 

information collection R–1 


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Classification Supplement is 6,635 and 

the estimated hour burden per response 

is 2.34 hours. 

(6) An estimate of the total public 

burden (in hours) associated with the 

collection: The total estimated annual 

hour burden associated with this 

collection of information is 1,103,130 

hours. 

(7) An estimate of the total public 

burden (in cost) associated with the 

collection: The estimated total annual 

cost burden associated with this 

collection of information is $70,681,290. 

List of Subjects in 8 CFR Part 214 

Administrative practice and 

procedure, Aliens, Cultural exchange 

program, Employment, Foreign officials, 

Health professions, Reporting and 

recordkeeping requirements, Students. 

Accordingly, DHS proposes to amend 

chapter I of title 8 of the Code of Federal 

Regulations as follows: 

PART 214—NONIMMIGRANT CLASSES 

■ 1. The authority citation for part 214 

continues to read as follows: 

Authority: 6 U.S.C. 202, 236; 8 U.S.C. 

1101, 1102, 1103, 1182, 1184, 1186a, 1187, 

1221, 1281, 1282, 1301–1305, 1357, and 

1372; sec. 643, Pub. L. 104–208, 110 Stat. 

3009–708; Pub. L. 106–386, 114 Stat. 1477– 

1480; section 141 of the Compacts of Free 

Association with the Federated States of 

Micronesia and the Republic of the Marshall 

Islands, and with the Government of Palau, 

48 U.S.C. 1901 note and 1931 note, 

respectively; 48 U.S.C. 1806; 8 CFR part 2; 

Pub. L. 115–218, 132 Stat. 1547 (48 U.S.C. 

1806). 

■ 2. Amend § 214.1 by: 

■ a. Revising paragraphs (c)(1) and (4); 

■ b. Redesignating paragraph (c)(5) as 

paragraph (c)(7); 

■ c. Adding new paragraph (c)(5) and 

paragraph (c)(6); and 

■ d. Revising newly redesignated 

paragraph (c)(7). 

The revisions and additions read as 

follows: 

§ 214.1 Requirements for admission, 

extension, and maintenance of status. 

* * * * * 

(c) * * * 

(1) Extension or amendment of stay 

for certain employment-based 

nonimmigrant workers. An applicant or 

petitioner seeking the services of an E– 

1, E–2, E–3, H–1B, H–1B1, H–2A, H–2B, 

H–3, L–1, O–1, O–2, P–1, P–2, P–3, P– 

1S, P–2S, P–3S, Q–1, R–1, or TN 

nonimmigrant beyond the period 

previously granted, or seeking to amend 

the terms and conditions of the 

nonimmigrant’s stay without a request 

for additional time, must file for an 

extension of stay or amendment of stay, 

on Form I–129, with the fee prescribed 

in 8 CFR 103.7, with the initial evidence 

specified in § 214.2, and in accordance 

with the form instructions. Dependents 

holding derivative status may be 

included in the petition if it is for only 

one worker and the form version 

specifically provides for their inclusion. 

In all other cases, dependents of the 

worker should file extensions of stay 

using Form I–539. 

* * * * * 

(4) Timely filing and maintenance of 

status. (i) An extension or amendment 

of stay may not be approved for an 

applicant or beneficiary who failed to 

maintain the previously accorded status 

or where such status expired before the 

application or petition was filed, except 

that USCIS may excuse the late filing in 

its discretion where it is demonstrated 

at the time of filing that: 

(A) The delay was due to 

extraordinary circumstances beyond the 

control of the applicant or petitioner, 

and USCIS finds the delay 

commensurate with the circumstances; 

(B) The applicant or beneficiary has 

not otherwise violated their 

nonimmigrant status; 

(C) The applicant or beneficiary 

remains a bona fide nonimmigrant; and 

(D) The applicant or beneficiary is not 

the subject of deportation proceedings 

under section 242 of the Act (prior to 

April 1, 1997) or removal proceedings 

under section 240 of the Act. 

(ii) If USCIS excuses the late filing of 

an extension of stay or amendment of 

stay request, it will do so without 

requiring the filing of a separate 

application or petition and will grant 

the extension of stay from the date the 

previously authorized stay expired or 

the amendment of stay from the date the 

petition was filed. 

(5) Deference to prior USCIS 

determinations of eligibility. When 

adjudicating a request filed on Form I– 

129 involving the same parties and the 

same underlying facts, USCIS gives 

deference to its prior determination of 

the petitioner’s, applicant’s, or 

beneficiary’s eligibility. However, 

USCIS need not give deference to a prior 

approval if: there was a material error 

involved with a prior approval; there 

has been a material change in 

circumstances or eligibility 

requirements; or there is new, material 

information that adversely impacts the 

petitioner’s, applicant’s, or beneficiary’s 

eligibility. 

(6) Evidence of maintenance of status. 

When requesting an extension or 

amendment of stay on Form I–129, an 

applicant or petitioner must submit 

supporting evidence to establish that the 

applicant or beneficiary maintained the 

previously accorded nonimmigrant 

status before the extension or 

amendment request was filed. Evidence 

of such maintenance of status may 

include, but is not limited to: copies of 

paystubs, W–2 forms, quarterly wage 

reports, tax returns, contracts, and work 

orders. 

(7) Decision on extension or 

amendment of stay request. Where an 

applicant or petitioner demonstrates 

eligibility for a requested extension or 

amendment of stay, USCIS may grant 

the extension or amendment in its 

discretion. The denial of an extension or 

amendment of stay request may not be 

appealed. 

* * * * * 

■ 3. Amend § 214.2 by: 

■ a. Revising paragraph (f)(5)(vi)(A); 

■ b. Removing and reserving paragraph 

(h)(2)(i)(B); 

■ c. Revising paragraphs (h)(2)(i)(E), (F), 

and (G) and (h)(4)(i)(B); 

■ d. Revising the definitions of 

‘‘Specialty occupation’’ and ‘‘United 

States employer’’ in paragraph (h)(4)(ii); 

■ e. Revising paragraphs (h)(4)(iii) 

heading and (h)(4)(iii)(A); 

■ f. Adding paragraph (h)(4)(iii)(F); 

■ g. Revising paragraph (h)(4)(iv) 

introductory text; 

■ h. Adding paragraph (h)(4)(iv)(C); 

■ i. Revising paragraphs (h)(8)(iii)(A)(1), 

(2), (4), and (5), (h)(8)(iii)(A)(6)(i) and 

(ii), (h)(8)(iii)(A)(7), (h)(8)(iii)(D) and (E), 

(h)(8)(iii)(F)(2)(iv), (h)(8)(iii)(F)(4), and 

(h)(9)(i); 

■ j. Adding paragraphs (h)(9)(ii)(D) and 

(h)(9)(iii)(E); 

■ k. Revising paragraph (h)(10)(ii); 

■ l. Adding paragraph (h)(10)(iii); 

■ m. Revising paragraphs (h)(11)(ii) and 

(h)(11)(iii)(A)(2) and (5); 

■ n. Adding paragraphs (h)(11)(iii)(A)(6) 

and (7); and 

■ o. Revising paragraphs (h)(14), 

(h)(19)(iii)(B)(4), (h)(19)(iii)(C), 

(h)(19)(iv), (l)(14)(i), (o)(11), and (p)(13). 

The revisions and additions read as 

follows: 

§ 214.2 Special requirements for 

admission, extension, and maintenance of 

status. 

* * * * * 

(f) * * * 

(5) * * * 

(vi) * * * 

(A) The duration of status, and any 

employment authorization granted 

under 8 CFR 274a.12(c)(3)(i)(B) or (C), of 

an F–1 student who is the beneficiary of 

an H–1B petition subject to section 

214(g)(1)(A) of the Act (8 U.S.C. 

1184(g)(1)(A)) and who requests a 

change of status will be automatically 

extended until April 1 of the fiscal year 


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for which such H–1B status is being 

requested or until the validity start date 

of the approved petition, whichever is 

earlier, where such petition: 

(1) Has been timely filed; 

(2) Requests an H–1B employment 

start date in the fiscal year for which 

such H–1B status is being requested 

consistent with paragraph (h)(2)(i)(I) of 

this section; and 

(3) Is nonfrivolous. 

* * * * * 

(h) * * * 

(2) * * * 

(i) * * * 

(E) Amended or new petition—(1) 

General provisions. The petitioner must 

file an amended or new petition, with 

the appropriate fee and in accordance 

with the form instructions, to reflect any 

material changes in the terms and 

conditions of employment or training or 

the beneficiary’s eligibility as specified 

in the original approved petition. An 

amended or new H–1B, H–2A, or H–2B 

petition must be accompanied by a 

current or new Department of Labor 

determination. In the case of an H–1B 

petition, the requirement in this 

paragraph (h)(2)(i)(E)(1) includes a 

current or new certified labor condition 

application. 

(2) Additional H–1B provisions. The 

amended or new petition must be 

properly filed before the material 

change(s) takes place. The beneficiary is 

not authorized to work under the 

materially changed terms and 

conditions of employment until the new 

or amended H–1B petition is approved 

and takes effect, unless the beneficiary 

is eligible for H–1B portability pursuant 

to paragraph (h)(2)(i)(H) of this section. 

Any change in the place of employment 

to a geographical area that requires a 

corresponding labor condition 

application to be certified to USCIS is 

considered a material change and 

requires an amended or new petition to 

be filed with USCIS before the H–1B 

worker may begin work at the new place 

of employment. Provided there are no 

material changes in the terms and 

conditions of the H–1B worker’s 

employment, a petitioner does not need 

to file an amended or new petition 

when: 

(i) Moving a beneficiary to a new job 

location within the same area of 

intended employment as listed on the 

labor condition application certified to 

USCIS in support of the current H–1B 

petition approval authorizing the H–1B 

nonimmigrant’s employment; 

(ii) Placing a beneficiary at a shortterm placements(s) or assignment(s) at 

any worksite(s) outside of the area of 

intended employment for a total of 30 

days or less in a 1-year period, or for a 

total of 60 days or less in a 1-year period 

where the H–1B beneficiary continues 

to maintain an office or work station at 

their permanent worksite, the 

beneficiary spends a substantial amount 

of time at the permanent worksite in a 

1-year period, and the beneficiary’s 

residence is located in the area of the 

permanent worksite and not in the area 

of the short-term worksite(s); or 

(iii) An H–1B beneficiary is going to 

a non-worksite location to participate in 

employee development, will be 

spending little time at any one location, 

or when the job is peripatetic in nature, 

in that the normal duties of the 

beneficiary’s occupation (rather than the 

nature of the employer’s business) 

requires frequent travel (local or nonlocal) from location to location. 

Peripatetic jobs include situations 

where the job is primarily at one 

location, but the beneficiary 

occasionally travels for short periods to 

other locations on a casual, short-term 

basis, which can be recurring but not 

excessive (i.e., not exceeding 5 

consecutive workdays for any one visit 

by a peripatetic worker, or 10 

consecutive workdays for any one visit 

by a worker who spends most work time 

at one location and travels occasionally 

to other locations). 

(F) Agents as petitioners. A United 

States agent may file a petition in cases 

involving workers who are traditionally 

self-employed or workers who use 

agents to arrange short-term 

employment on their behalf with 

numerous employers, and in cases 

where a foreign employer authorizes the 

agent to act on its behalf. A United 

States agent may be: the actual employer 

of the beneficiary; the representative of 

both the employer and the beneficiary; 

or a person or entity authorized by the 

employer to act for, or in place of, the 

employer as its agent. The burden is on 

the agent to explain the terms and 

conditions of the employment and to 

provide any required documentation. In 

questionable cases, a contract between 

the employers and the beneficiary or 

beneficiaries may be required. 

(1) An agent performing the function 

of an employer must guarantee the 

wages and other terms and conditions of 

employment by contractual agreement 

with the beneficiary or beneficiaries of 

the petition. 

(2) A foreign employer who, through 

a United States agent, files a petition for 

an H nonimmigrant alien is responsible 

for complying with all of the employer 

sanctions provisions of section 274A of 

the Act and 8 CFR part 274a. 

(G) Multiple H–1B petitions or 

registrations. An employer may not file 

or submit, in the same fiscal year, more 

than one H–1B petition or registration 

on behalf of the same alien if the alien 

is subject to the numerical limitations of 

section 214(g)(1)(A) of the Act or is 

eligible for exemption from those 

limitations under section 214(g)(5)(C) of 

the Act. However, if an H–1B petition is 

denied, on a basis other than fraud or 

misrepresentation, the employer may 

file a subsequent H–1B petition on 

behalf of the same alien in the same 

fiscal year, provided that USCIS 

continues to accept registrations, or 

petitions if registration is suspended, 

towards the numerical allocations and 

there is a valid registration that was 

selected on behalf of that beneficiary, or 

if the filing qualifies as exempt from the 

applicable numerical limitations. 

Otherwise, filing or submitting more 

than one H–1B petition or registration 

by an employer on behalf of the same 

alien in the same fiscal year may result 

in the denial or revocation of all such 

petitions and invalidation of all such 

registrations. If USCIS believes that 

related entities (including, but not 

limited to, a parent company, 

subsidiary, or affiliate) may not have a 

legitimate business need to file or 

submit more than one H–1B petition or 

registration on behalf of the same alien 

subject to the numerical limitations of 

section 214(g)(1)(A) of the Act or 

otherwise eligible for an exemption 

under section 214(g)(5)(C) of the Act, 

USCIS may issue a request for evidence, 

notice of intent to deny, or notice of 

intent to revoke each petition. If any of 

the related entities fail to demonstrate a 

legitimate business need to file or 

submit an H–1B petition or registration 

on behalf of the same alien, all petitions 

filed on that alien’s behalf by the related 

entities may be denied or revoked, and 

all such registrations invalidated. This 

limitation on petitions and registrations 

will not apply if the multiple filings or 

submissions occurred as a result of 

USCIS requiring petitioners to refile or 

resubmit previously submitted petitions 

or registrations. 

* * * * * 

(4) * * * 

(i) * * * 

(B) General requirements for petitions 

involving a specialty occupation—(1) 

Labor condition application 

requirements. (i) Before filing a petition 

for H–1B classification in a specialty 

occupation, the petitioner must obtain a 

certified labor condition application 

from the Department of Labor in the 

occupational specialty in which the 

alien(s) will be employed. 

(ii) Certification by the Department of 

Labor of a labor condition application in 


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an occupational classification does not 

constitute a determination by the agency 

that the occupation in question is a 

specialty occupation. USCIS will 

determine whether the labor condition 

application involves a specialty 

occupation as defined in section 

214(i)(1) of the Act and properly 

corresponds with the petition. USCIS 

will also determine whether all other 

eligibility requirements have been met, 

such as whether the alien for whom H– 

1B classification is sought qualifies to 

perform services in the specialty 

occupation as prescribed in section 

214(i)(2) of the Act. 

(iii) If all of the beneficiaries covered 

by an H–1B labor condition application 

have not been identified at the time a 

petition is filed, petitions for newly 

identified beneficiaries may be filed at 

any time during the validity of the labor 

condition application using photocopies 

of the same certified labor condition 

application. Each petition must refer by 

file number to all previously approved 

petitions for that labor condition 

application. 

(iv) When petitions have been 

approved for the total number of 

workers specified in the labor condition 

application, substitution of aliens 

against previously approved openings 

cannot be made. A new labor condition 

application will be required. 

(v) If the Secretary of Labor notifies 

USCIS that the petitioning employer has 

failed to meet a condition of paragraph 

(B) of section 212(n)(1) of the Act, has 

substantially failed to meet a condition 

of paragraphs (C) or (D) of section 

212(n)(1) of the Act, has willfully failed 

to meet a condition of paragraph (A) of 

section 212(n)(1) of the Act, or has 

misrepresented any material fact in the 

application, USCIS will not approve 

petitions filed with respect to that 

employer under section 204 or 214(c) of 

the Act for a period of at least 1 year 

from the date of receipt of such notice. 

(vi) If the employer’s labor condition 

application is suspended or invalidated 

by the Department of Labor, USCIS will 

not suspend or revoke the employer’s 

approved petitions for aliens already 

employed in specialty occupations if the 

employer has certified to the 

Department of Labor that it will comply 

with the terms of the labor condition 

application for the duration of the 

authorized stay of aliens it employs. 

(2) Inspections, evaluations, 

verifications, and compliance reviews. 

(i) The information provided on an H– 

1B petition and the evidence submitted 

in support of such petition may be 

verified by USCIS through lawful means 

as determined by USCIS, including 

telephonic and electronic verifications 

and onsite inspections. Such 

verifications and inspections may 

include, but are not limited to: 

electronic validation of a petitioner’s or 

third party’s basic business information; 

visits to the petitioner’s or third party’s 

facilities; interviews with the 

petitioner’s or third party’s officials; 

reviews of the petitioner’s or third 

party’s records related to compliance 

with immigration laws and regulations; 

and interviews with any other 

individuals possessing pertinent 

information, as determined by USCIS, 

which may be conducted in the absence 

of the employer or the employer’s 

representatives; and reviews of any 

other records that USCIS may lawfully 

obtain and that it considers pertinent to 

verify facts related to the adjudication of 

the H–1B petition, such as facts relating 

to the petitioner’s and beneficiary’s H– 

1B eligibility and compliance. The 

interviews may be conducted on the 

employer’s property, or as feasible, at a 

neutral location agreed to by the 

interviewee and USCIS away from the 

employer’s property. An inspection may 

be conducted at locations including the 

petitioner’s headquarters, satellite 

locations, or the location where the 

beneficiary works, has worked, or will 

work, including third party worksites, 

as applicable. USCIS may commence 

verification or inspection under this 

paragraph for any petition and at any 

time after an H–1B petition is filed, 

including any time before or after the 

final adjudication of the petition. The 

commencement of such verification and 

inspection before the final adjudication 

of the petition does not preclude the 

ability of USCIS to complete final 

adjudication of the petition before the 

verification and inspection are 

completed. 

(ii) USCIS conducts on-site 

inspections or other compliance reviews 

to verify facts related to the adjudication 

of the petition and compliance with H– 

1B petition requirements. If USCIS is 

unable to verify facts, including due to 

the failure or refusal of the petitioner or 

a third party to cooperate in an 

inspection or other compliance review, 

then such inability to verify facts, 

including due to failure or refusal to 

cooperate, may result in denial or 

revocation of any H–1B petition for H– 

1B workers performing services at the 

location or locations that are a subject 

of inspection or compliance review, 

including any third party worksites. 

(3) Third party requirements. If the 

beneficiary will be staffed to a third 

party, meaning they will be contracted 

to fill a position in a third party’s 

organization and becomes part of that 

third party’s organizational hierarchy by 

filling a position in that hierarchy (and 

not merely providing services to the 

third party), the actual work to be 

performed by the beneficiary must be in 

a specialty occupation. When staffed to 

a third party, it is the requirements of 

that third party, and not the petitioner, 

that are most relevant when determining 

whether the position is a specialty 

occupation. 

* * * * * 

(ii) * * * 

Specialty occupation means an 

occupation that requires theoretical and 

practical application of a body of highly 

specialized knowledge in fields of 

human endeavor including, but not 

limited to, architecture, engineering, 

mathematics, physical sciences, social 

sciences, medicine and health, 

education, business specialties, 

accounting, law, theology, and the arts, 

and that requires the attainment of a 

bachelor’s degree or higher in a specific 

specialty, or its equivalent, as a 

minimum for entry into the occupation 

in the United States. The required 

specialized studies must be directly 

related to the position. A position is not 

a specialty occupation if attainment of 

a general degree, such as business 

administration or liberal arts, without 

further specialization, is sufficient to 

qualify for the position. A position may 

allow a range of degrees or apply 

multiple bodies of highly specialized 

knowledge, provided that each of those 

qualifying degree fields or each body of 

highly specialized knowledge is directly 

related to the position. 

United States employer means a 

person, firm, corporation, contractor, or 

other association, or organization in the 

United States that: 

(1) Has a bona fide job offer for the 

beneficiary to work within the United 

States, which may include telework, 

remote work, or other off-site work 

within the United States; 

(2) Has a legal presence in the United 

States and is amenable to service of 

process in the United States; and 

(3) Has an Internal Revenue Service 

Tax identification number. 

(4) If the H–1B beneficiary possesses 

a controlling interest in the petitioner, 

such a beneficiary may perform duties 

that are directly related to owning and 

directing the petitioner’s business as 

long as the beneficiary will perform 

specialty occupation duties a majority of 

the time, consistent with the terms of 

the H–1B petition. 

(iii) General H–1B requirements—(A) 

Criteria for specialty occupation 

position. A position does not meet the 

definition of specialty occupation in 

paragraph (h)(4)(ii) of this section unless 


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it also satisfies at least one of the 

following criteria at paragraphs 

(h)(4)(iii)(A)(1) through (4) of this 

section: 

(1) A U.S. baccalaureate or higher 

degree in a directly related specific 

specialty, or its equivalent, is normally 

the minimum requirement for entry into 

the particular occupation; 

(2) A U.S. baccalaureate or higher 

degree in a directly related specific 

specialty, or its equivalent, is normally 

required for parallel positions among 

similar organizations in the employer’s 

United States industry; 

(3) The employer, or third party if the 

beneficiary will be staffed to that third 

party, normally requires a U.S. 

baccalaureate or higher degree in a 

directly related specific specialty, or its 

equivalent, for the position; or 

(4) The specific duties of the proffered 

position are so specialized, complex, or 

unique that the knowledge required to 

perform the duties are normally 

associated with the attainment of a U.S. 

baccalaureate or higher degree in a 

directly related specific specialty, or its 

equivalent. 

(5) For purposes of the criteria at 

paragraphs (h)(4)(iii)(A)(1) through (4) 

of this section, normally means 

conforming to a type, standard, or 

regular pattern, and is characterized by 

that which is considered usual, typical, 

common, or routine. Normally does not 

mean always. 

* * * * * 

(F) Non-speculative position in a 

specialty occupation. At the time of 

filing, the petitioner must establish that 

it has a non-speculative position in a 

specialty occupation available for the 

beneficiary as of the start date of the 

validity period as requested on the 

petition. 

(iv) General documentary 

requirements for H–1B classification in 

a specialty occupation. Except as 

specified in paragraph (h)(4)(iv)(C) of 

this section, an H–1B petition involving 

a specialty occupation must be 

accompanied by: 

* * * * * 

(C) In accordance with 8 CFR 103.2(b) 

and paragraph (h)(9) of this section, 

USCIS may request evidence such as 

contracts, work orders, or other similar 

evidence between all parties in a 

contractual relationship showing the 

terms and conditions of the 

beneficiary’s work and the minimum 

educational requirements to perform the 

duties. 

* * * * * 

(8) * * * 

(iii) * * * 

(A) * * * 

(1) Registration requirement. Except 

as provided in paragraph (h)(8)(iv) of 

this section, before a petitioner can file 

an H–1B cap-subject petition for a 

beneficiary who may be counted under 

section 214(g)(1)(A) of the Act (‘‘H–1B 

regular cap’’) or eligible for exemption 

under section 214(g)(5)(C) of the Act 

(‘‘H–1B advanced degree exemption’’), 

the petitioner must register to file a 

petition on behalf of a beneficiary 

electronically through the USCIS 

website (www.uscis.gov). To be eligible 

to file a petition for a beneficiary who 

may be counted against the H–1B 

regular cap or the H–1B advanced 

degree exemption for a particular fiscal 

year, a registration must be properly 

submitted in accordance with 8 CFR 

103.2(a)(1), paragraph (h)(8)(iii) of this 

section, and the form instructions, for 

the same fiscal year. 

(2) Limitation on beneficiaries. A 

prospective petitioner must 

electronically submit a separate 

registration for each beneficiary it seeks 

to register, and each beneficiary must be 

named. A petitioner may only submit 

one registration per beneficiary in any 

fiscal year. If a petitioner submits more 

than one registration per beneficiary in 

the same fiscal year, all registrations 

filed by that petitioner relating to that 

beneficiary for that fiscal year may be 

considered invalid, and USCIS may 

deny or revoke the approval of any 

petition filed for the beneficiary based 

on those registrations. If USCIS 

determines that registrations were 

submitted for the same beneficiary by 

the same or different registrants, but 

using different identifying information, 

USCIS may find those registrations 

invalid and deny or revoke the approval 

of any petition filed based on those 

registrations. Petitioners will be given 

notice and the opportunity to respond 

before USCIS denies or revokes the 

approval of a petition. 

* * * * * 

(4) Selecting registrations based on 

unique beneficiaries. Registrations will 

be counted based on the number of 

unique beneficiaries who are registered. 

(i) Should a random selection be 

necessary, each unique beneficiary will 

only be counted once towards the 

random selection of registrations, 

regardless of how many registrations 

were submitted for that beneficiary. A 

petitioner may file an H–1B cap-subject 

petition on behalf of a registered 

beneficiary only after a registration for 

that beneficiary has been selected for 

that fiscal year. USCIS will notify all 

registrants that submitted a registration 

on behalf of a selected beneficiary that 

they may file a petition for that 

beneficiary. 

(ii) Registrations must include the 

beneficiary’s valid passport information, 

as specified in the form instructions. 

Each beneficiary must only be registered 

under one passport, and if the 

beneficiary is abroad, the passport 

information must correspond to the 

passport the beneficiary intends to use 

to enter the United States. 

(5) Regular cap selection. In 

determining whether there are enough 

registrations for unique beneficiaries to 

meet the H–1B regular cap, USCIS will 

consider all properly submitted 

registrations relating to beneficiaries 

that may be counted under section 

214(g)(1)(A) of the Act, including those 

that may also be eligible for exemption 

under section 214(g)(5)(C) of the Act. 

Registrations will be counted based on 

the number of unique beneficiaries that 

are registered. 

(i) Fewer registrations than needed to 

meet the H–1B regular cap. At the end 

of the annual initial registration period, 

if USCIS determines that it has received 

fewer registrations for unique 

beneficiaries than needed to meet the 

H–1B regular cap, USCIS will notify all 

petitioners that have properly registered 

that their registrations have been 

selected. USCIS will keep the 

registration period open beyond the 

initial registration period, until it 

determines that it has received a 

sufficient number of registrations for 

unique beneficiaries to meet the H–1B 

regular cap. Once USCIS has received a 

sufficient number of registrations for 

unique beneficiaries to meet the H–1B 

regular cap, USCIS will no longer accept 

registrations for petitions subject to the 

H–1B regular cap under section 

214(g)(1)(A). USCIS will monitor the 

number of registrations received and 

will notify the public of the date that 

USCIS has received the necessary 

number of registrations for unique 

beneficiaries (the ‘‘final registration 

date’’). The day the public is notified 

will not control the applicable final 

registration date. When necessary to 

ensure the fair and orderly allocation of 

numbers under section 214(g)(1)(A) of 

the Act, USCIS may randomly select the 

remaining number of registrations for 

unique beneficiaries deemed necessary 

to meet the H–1B regular cap from 

among the registrations received on the 

final registration date. This random 

selection will be made via computergenerated selection, based on the unique 

beneficiary. 

(ii) Sufficient registrations to meet the 

H–1B regular cap during initial 

registration period. At the end of the 

initial registration period, if USCIS 


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determines that it has received more 

than sufficient registrations for unique 

beneficiaries to meet the H–1B regular 

cap, USCIS will no longer accept 

registrations under section 214(g)(1)(A) 

of the Act and will notify the public of 

the final registration date. USCIS will 

randomly select from among the 

registrations properly submitted during 

the initial registration period the 

number of registrations for unique 

beneficiaries deemed necessary to meet 

the H–1B regular cap. This random 

selection will be made via computergenerated selection, based on the unique 

beneficiary. 

(6) * * * 

(i) Fewer registrations than needed to 

meet the H–1B advanced degree 

exemption numerical limitation. If 

USCIS determines that it has received 

fewer registrations for unique 

beneficiaries than needed to meet the 

H–1B advanced degree exemption 

numerical limitation, USCIS will notify 

all petitioners that have properly 

registered that their registrations have 

been selected. USCIS will continue to 

accept registrations to file petitions for 

beneficiaries that may be eligible for the 

H–1B advanced degree exemption under 

section 214(g)(5)(C) of the Act until 

USCIS determines that it has received 

enough registrations for unique 

beneficiaries to meet the H–1B 

advanced degree exemption numerical 

limitation. USCIS will monitor the 

number of registrations received and 

will notify the public of the date that 

USCIS has received the necessary 

number of registrations for unique 

beneficiaries (the ‘‘final registration 

date’’). The day the public is notified 

will not control the applicable final 

registration date. When necessary to 

ensure the fair and orderly allocation of 

numbers under sections 214(g)(1)(A) 

and 214(g)(5)(C) of the Act, USCIS may 

randomly select the remaining number 

of registrations for unique beneficiaries 

deemed necessary to meet the H–1B 

advanced degree exemption numerical 

limitation from among the registrations 

properly submitted on the final 

registration date. This random selection 

will be made via computer-generated 

selection, based on the unique 

beneficiary. 

(ii) Sufficient registrations to meet the 

H–1B advanced degree exemption 

numerical limitation. If USCIS 

determines that it has received more 

than enough registrations for unique 

beneficiaries to meet the H–1B 

advanced degree exemption numerical 

limitation, USCIS will no longer accept 

registrations that may be eligible for 

exemption under section 214(g)(5)(C) of 

the Act and will notify the public of the 

final registration date. USCIS will 

randomly select the number of 

registrations for unique beneficiaries 

needed to meet the H–1B advanced 

degree exemption numerical limitation 

from among the remaining registrations 

for unique beneficiaries who may be 

counted against the advanced degree 

exemption numerical limitation. This 

random selection will be made via 

computer-generated selection, based on 

the unique beneficiary. 

(7) Increase to the number of 

beneficiaries projected to meet the H–1B 

regular cap or advanced degree 

exemption allocations in a fiscal year. 

Unselected registrations will remain on 

reserve for the applicable fiscal year. If 

USCIS determines that it needs to 

increase the number of registrations for 

unique beneficiaries projected to meet 

the H–1B regular cap or advanced 

degree exemption allocation, and select 

additional registrations for unique 

beneficiaries, USCIS will select from 

among the registrations that are on 

reserve a sufficient number to meet the 

H–1B regular cap or advanced degree 

exemption numerical limitation, as 

applicable. If all of the registrations on 

reserve are selected and there are still 

fewer registrations than needed to meet 

the H–1B regular cap or advanced 

degree exemption numerical limitation, 

as applicable, USCIS may reopen the 

applicable registration period until 

USCIS determines that it has received a 

sufficient number of registrations for 

unique beneficiaries projected as 

needed to meet the H–1B regular cap or 

advanced degree exemption numerical 

limitation. USCIS will monitor the 

number of registrations received and 

will notify the public of the date that 

USCIS has received the necessary 

number of registrations (the new ‘‘final 

registration date’’). The day the public is 

notified will not control the applicable 

final registration date. When necessary 

to ensure the fair and orderly allocation 

of numbers, USCIS may randomly select 

the remaining number of registrations 

for unique beneficiaries deemed 

necessary to meet the H–1B regular cap 

or advanced degree exemption 

numerical limitation from among the 

registrations properly submitted on the 

final registration date. If the registration 

period will be re-opened, USCIS will 

announce the start of the re-opened 

registration period on the USCIS 

website at www.uscis.gov. 

* * * * * 

(D) H–1B cap-subject petition filing 

following registration—(1) Filing 

procedures. In addition to any other 

applicable requirements, a petitioner 

may file an H–1B petition for a 

beneficiary who may be counted under 

section 214(g)(1)(A) or eligible for 

exemption under section 214(g)(5)(C) of 

the Act only if the petition is based on 

a valid registration, which means that 

the registration was properly submitted 

in accordance with 8 CFR 103.2(a)(1), 

paragraph (h)(8)(iii) of this section, and 

the registration tool instructions, and 

was submitted by the petitioner, or its 

designated representative, on behalf of 

the beneficiary who was selected for 

that cap season by USCIS. A petitioner 

may not substitute the beneficiary 

named in the original registration or 

transfer the registration to another 

petitioner. Any H–1B petition filed on 

behalf of a beneficiary must contain and 

be supported by the same identifying 

information provided in the selected 

registration. Petitioners must submit 

evidence of the passport used at the 

time of registration to identify the 

beneficiary. In its discretion, USCIS may 

find that a change in identifying 

information in some circumstances 

would be permissible. Such 

circumstances could include, but are 

not limited to, a legal name change due 

to marriage, change in gender identity, 

or a change in passport number or 

expiration date due to renewal or 

replacement of a stolen passport, in 

between the time of registration and 

filing the petition. USCIS may deny or 

revoke the approval of an H–1B petition 

that does not meet these requirements. 

(2) Registration fee. USCIS may deny 

or revoke the approval of an H–1B 

petition if it determines that the fee 

associated with the registration is 

declined, not reconciled, disputed, or 

otherwise invalid after submission. The 

registration fee is non-refundable and 

due at the time the registration is 

submitted. 

(3) Filing period. An H–1B cap-subject 

petition must be properly filed within 

the filing period indicated on the 

relevant selection notice. The filing 

period for filing the H–1B cap-subject 

petition will be at least 90 days. If 

petitioners do not meet the 

requirements of this paragraph 

(h)(8)(iii)(D), USCIS may deny or reject 

the H–1B cap-subject petition. 

(E) Calculating the number of 

registrations needed to meet the H–1B 

regular cap and H–1B advanced degree 

exemption allocation. When calculating 

the number of registrations for unique 

beneficiaries needed to meet the H–1B 

regular cap and the H–1B advanced 

degree exemption numerical limitation 

for a given fiscal year, USCIS will take 

into account historical data related to 

approvals, denials, revocations, and 

other relevant factors. If necessary, 


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USCIS may increase those numbers 

throughout the fiscal year. 

(F) * * * 

(2) * * * 

(iv) The nonprofit entity has entered 

into a formal written affiliation 

agreement with an institution of higher 

education that establishes an active 

working relationship between the 

nonprofit entity and the institution of 

higher education for the purposes of 

research or education, and a 

fundamental activity of the nonprofit 

entity is to directly contribute to the 

research or education mission of the 

institution of higher education. A 

nonprofit entity may engage in more 

than one fundamental activity. 

* * * * * 

(4) An H–1B beneficiary who is not 

directly employed by a qualifying 

institution, organization, or entity 

identified in section 214(g)(5)(A) or (B) 

of the Act will qualify for an exemption 

under such section if the H–1B 

beneficiary will spend at least half of 

their work time performing job duties at 

a qualifying institution, organization, or 

entity and those job duties directly 

further an activity that supports or 

advances one of the fundamental 

purposes, missions, objectives, or 

functions of the qualifying institution, 

organization, or entity, namely, either 

higher education, nonprofit research, or 

government research. Work performed 

‘‘at’’ the qualifying institution may 

include work performed in the United 

States through telework, remote work, 

or other off-site work. When considering 

whether a position is cap-exempt, 

USCIS will focus on the job duties to be 

performed, rather than where the duties 

are physically performed. 

* * * * * 

(9) * * * 

(i) Approval. (A) USCIS will consider 

all the evidence submitted and any 

other evidence independently required 

to assist in adjudication. USCIS will 

notify the petitioner of the approval of 

the petition on a Notice of Action. The 

approval notice will include the 

beneficiary’s (or beneficiaries’) name(s) 

and classification and the petition’s 

period of validity. A petition for more 

than one beneficiary and/or multiple 

services may be approved in whole or 

in part. The approval notice will cover 

only those beneficiaries approved for 

classification under section 

101(a)(15)(H) of the Act. 

(B) Where an H–1B petition is 

approved for less time than requested 

on the petition, the approval notice will 

provide or be accompanied by a brief 

explanation for the validity period 

granted. 

(ii) * * * 

(D)(1) If an H–1B petition is 

adjudicated and deemed approvable 

after the initially requested validity 

period end-date or end-date for which 

eligibility is established, the officer may 

issue a request for evidence (RFE) 

asking the petitioner whether they want 

to update the requested dates of 

employment. Factors that inform 

whether USCIS issues an RFE could 

include, but would not be limited to: 

additional petitions filed or approved 

on the beneficiary’s behalf, or the 

beneficiary’s eligibility for additional 

time in H–1B status. If the new 

requested period exceeds the validity 

period of the labor condition 

application already submitted with the 

H–1B petition, the petitioner must 

submit a certified labor condition 

application with a new validity period 

that properly corresponds to the new 

requested validity period on the petition 

and an updated prevailing or proffered 

wage, if applicable, except that the 

petitioner may not reduce the proffered 

wage from that originally indicated in 

their petition. This labor condition 

application may be certified after the 

date the H–1B petition was filed with 

USCIS. The request for new dates of 

employment and submission of a labor 

condition application corresponding 

with the new dates of employment, 

absent other changes, will not be 

considered a material change. An 

increase to the proffered wage will not 

be considered a material change, as long 

as there are no other material changes to 

the position. 

(2) If USCIS does not issue an RFE 

concerning the requested dates of 

employment, if the petitioner does not 

respond, or the RFE response does not 

support new dates of employment, the 

petition will be approved, if otherwise 

approvable, for the originally requested 

period or until the end-date eligibility 

has been established, as appropriate. 

However, the petition will not be 

forwarded to the Department of State 

nor will any accompanying request for 

a change of status, an extension of stay, 

or amendment of stay, be granted. 

(iii) * * * 

(E) H–1B petition for certain 

beneficiary-owned entities. The initial 

approval of a petition filed by a United 

States employer in which the H–1B 

beneficiary possesses a controlling 

ownership interest in the petitioning 

organization or entity will be limited to 

a validity period of up to 18 months. 

The first extension (including an 

amended petition with a request for an 

extension of stay) of such a petition will 

also be limited to a validity period of up 

to 18 months. 

* * * * * 

(10) * * * 

(ii) Denial for statement of facts on 

the petition, H–1B registration, 

temporary labor certification, labor 

condition application, or invalid H–1B 

registration. The petition will be denied 

if it is determined that the statements on 

the petition, H–1B registration (if 

applicable), the application for a 

temporary labor certification, or the 

labor condition application, were 

inaccurate, fraudulent, or 

misrepresented a material fact, 

including if the attestations on the 

registration are determined to be false. 

An H–1B cap-subject petition also will 

be denied if it is not based on a valid 

registration submitted by the petitioner 

(or its designated representative), or a 

successor in interest, for the beneficiary 

named or identified in the petition. 

(iii) Notice of denial. The petitioner 

will be notified of the reasons for the 

denial and of the right to appeal the 

denial of the petition under 8 CFR part 

103. There is no appeal from a decision 

to deny an extension of stay to the alien. 

(11) * * * 

(ii) Immediate and automatic 

revocation. The approval of any petition 

is immediately and automatically 

revoked if the petitioner goes out of 

business, files a written withdrawal of 

the petition, or the Department of Labor 

revokes the labor certification upon 

which the petition is based. The 

approval of an H–1B petition is also 

immediately and automatically revoked 

upon notification from the H–1B 

petitioner that the beneficiary is no 

longer employed. 

(iii) * * * 

(A) * * * 

(2) The statement of facts contained in 

the petition, H–1B registration (if 

applicable), the application for a 

temporary labor certification, or the 

labor condition application, was not 

true and correct, inaccurate, fraudulent, 

or misrepresented a material fact, 

including if the attestations on the 

registration are determined to be false; 

or 

* * * * * 

(5) The approval of the petition 

violated paragraph (h) of this section or 

involved gross error; 

(6) The H–1B cap-subject petition was 

not based on a valid registration 

submitted by the petitioner (or its 

designated representative), or a 

successor in interest, for the beneficiary 

named or identified in the petition; or 

(7) The petitioner failed to timely file 

an amended petition notifying USCIS of 


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a material change or otherwise failed to 

comply with the material change 

reporting requirements in paragraph 

(h)(2)(i)(E) of this section. 

* * * * * 

(14) Extension of visa petition 

validity. The petitioner must file a 

request for a petition extension on the 

Form I–129 to extend the validity of the 

original petition under section 

101(a)(15)(H) of the Act. A request for a 

petition extension generally may be 

filed only if the validity of the original 

petition has not expired. 

* * * * * 

(19) * * * 

(iii) * * * 

(B) * * * 

(4) The nonprofit entity has entered 

into a formal written affiliation 

agreement with an institution of higher 

education that establishes an active 

working relationship between the 

nonprofit entity and the institution of 

higher education for the purposes of 

research or education, and a 

fundamental activity of the nonprofit 

entity is to directly contribute to the 

research or education mission of the 

institution of higher education. A 

nonprofit entity may engage in more 

than one fundamental activity. 

(C) A nonprofit research organization 

or government research organization. 

When a fundamental activity of a 

nonprofit organization is engaging in 

basic research and/or applied research, 

that organization is a nonprofit research 

organization. When a fundamental 

activity of a governmental organization 

is the performance or promotion of basic 

research and/or applied research, that 

organization is a government research 

organization. A governmental research 

organization may be a Federal, state, or 

local entity. A nonprofit research 

organization or governmental research 

organization may perform or promote 

more than one fundamental activity. 

Basic research is general research to 

gain more comprehensive knowledge or 

understanding of the subject under 

study, without specific applications in 

mind. Basic research is also research 

that advances scientific knowledge but 

does not have specific immediate 

commercial objectives although it may 

be in fields of present or potential 

commercial interest. Applied research is 

research to gain knowledge or 

understanding to determine the means 

by which a specific, recognized need 

may be met. Applied research includes 

investigations oriented to discovering 

new scientific knowledge that has 

specific commercial objectives with 

respect to products, processes, or 

services. Both basic research and 

applied research may include research 

and investigation in the sciences, social 

sciences, or humanities and may 

include designing, analyzing, and 

directing the research of others if on an 

ongoing basis and throughout the 

research cycle. 

* * * * * 

(iv) Nonprofit or tax-exempt 

organizations. For purposes of 

paragraphs (h)(19)(iii)(B) and (C) of this 

section, a nonprofit organization or 

entity must be determined by the 

Internal Revenue Service as a tax 

exempt organization under the Internal 

Revenue Code of 1986, section 501(c)(3), 

(c)(4), or (c)(6), 26 U.S.C. 501(c)(3), 

(c)(4), or (c)(6). 

* * * * * 

(l) * * * 

(14) * * * 

(i) Individual petition. The petitioner 

must file a petition extension on Form 

I–129 to extend an individual petition 

under section 101(a)(15)(L) of the Act. A 

petition extension generally may be 

filed only if the validity of the original 

petition has not expired. 

* * * * * 

(o) * * * 

(11) Extension of visa petition 

validity. The petitioner must file a 

request to extend the validity of the 

original petition under section 

101(a)(15)(O) of the Act on the form 

prescribed by USCIS, in order to 

continue or complete the same activities 

or events specified in the original 

petition. A petition extension generally 

may be filed only if the validity of the 

original petition has not expired. 

* * * * * 

(p) * * * 

(13) Extension of visa petition 

validity. The petitioner must file a 

request to extend the validity of the 

original petition under section 

101(a)(15)(P) of the Act on the form 

prescribed by USCIS in order to 

continue or complete the same activity 

or event specified in the original 

petition. A petition extension generally 

may be filed only if the validity of the 

original petition has not expired. 

* * * * * 

Alejandro N. Mayorkas, 

Secretary, U.S. Department of Homeland 

Security. 

[FR Doc. 2023–23381 Filed 10–20–23; 8:45 am] 

BILLING CODE 9111–97–P 


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