On October 23, 2023, the Department of Homeland Security published a proposed rule titled “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers.” Among other changes, the rule would, if implemented, shift the annual H-1B selection to a beneficiary-centric lottery, provide additional guidance for beneficiary-owners, and clarify existing requirements for credential-employment connections.
In the public comment linked below, Niskanen’s Immigration Research Analyst, Cecilia Esterline, discusses some of these changes and makes recommendations for clarification and additional flexibility. Her recommendations request that USCIS utilize language that focuses on duties and skills rather than job titles and degree names, retain the option to register on behalf of beneficiaries without a valid passport, remove the 18-month validity period restriction for beneficiary-owners, include an in-person component in the bona fide job offer requirements, and exclude beneficiaries’ homes from site visits.
Charles Nimick
Chief, Business and Foreign Workers Division, Office of Policy and Strategy
Department of Homeland Security
U.S. Citizenship and Immigration Services
5900 Capital Gateway Drive, Suite 4S190,
Camp Springs, MD 20588-0009
Phone: 240-721-3000
RE: DHS Docket No. USCIS–2023–0005, Modernizing H–1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers
Dear Mr. Nimick,
I write on behalf of the Niskanen Center to provide the following comment in response to the United States Citizenship and Immigration Services’ (“USCIS”) notice of proposed rulemaking, Modernizing H–1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers, 88 Fed. Reg. 72, 870 (Oct. 23, 2023) (“Proposed Rule”).
The Niskanen Center is a nonprofit public policy organization dedicated to strengthening liberal democratic governance and promoting widespread prosperity and opportunity. Our vision of market liberalism is rooted in an effective public sector and a competitive private sector and is committed to upholding the principles of a pluralistic and open society that encourages engagement, cooperation, discussion, and learning.
We are committed to the premise that immigration is an irreplaceable pillar of America’s economic, civic, and cultural strength. Our ability to attract the brightest minds and hardest workers worldwide has helped usher in unprecedented U.S. innovation and dynamism. Our economic health depends on newcomers who fill critical gaps in our workforce, pay billions of dollars in taxes every year, and employ millions of Americans in their businesses.
Within our immigration system, the H-1B program has played a critical role in retaining valuable foreign graduates of U.S. universities and recruiting highly qualified workers who bolster domestic economic activity. While we continue to encourage bipartisan legislation that can modernize the entirety of the American immigration system, we welcome this opportunity to comment on the narrow modernization of the H-1B program as proposed in this rule.
Our recommendations are below:
- Utilize language that focuses on duties and skills, not job titles and degree names.
The revision of the specialty occupation definition at 8 CFR 214.2(h)(4)(ii) provides useful clarification of the statutory requirement that a qualifying degree must be in the specific specialty of the occupation. However, the suggested language indicating that “[a] position may allow a range of degrees[…] provided that each of those qualifying degree fields[…] is directly related to the position” is not consistent with longstanding USCIS practice.
The suggested language states “[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 footnote in the proposed rulemaking’s discussion section clarifies that these examples refer to degree programs by name for expediency but that USCIS evaluates the courses of study as they relate to the duties of the position rather than merely evaluating the title of the degree. That clarification should be reflected directly in the rule’s language.
USCIS should primarily be concerned with the relationship between the courses studied and the knowledge obtained and the duties that must be performed. Although that relationship has been the subject of USCIS adjudication previously, implementing the proposed rule without directly clarifying that relationship in the regulation itself could establish a confusing legal standard that future administrations could exploit.
Universities have a significant amount of autonomy over how they name and label their degree programs. Students are also often permitted to choose different courses within the same degree program. Employers and petitioners should be responsible for demonstrating the direct relationship between the content of the beneficiary’s studies and the duties the beneficiary will perform, rather than meeting a superficial standard of matching position titles to degree titles.
To clarify that standard, we propose removing the sentence “[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.” The proposed sentence stating that “[a] position may allow a range of degrees… provided that each of those qualifying degree fields… is directly related to the position” should be revised to read, “[a] position may allow a range of degrees or apply multiple bodies of highly specialized knowledge, provided that the courses studied in pursuit of each qualifying degree field or each body of highly specialized knowledge are directly related to the duties of the position.”
- Retain the option to allow beneficiaries to register if they certify that they do not have a valid passport.
As proposed, shifting the random selection process from registration-based selection to beneficiary-centric selection represents a welcome effort by the Department of Homeland Security (DHS) to mitigate the astonishing levels of fraud witnessed in the latest lottery. Not only does this shift to beneficiary-centric selection disincentivize the misuse seen in recent lotteries, it also rewards highly qualified beneficiaries who have multiple, legitimate job offers by providing them with additional autonomy to decide for whom they will work.
However, the proposed changes to the registration process would also require the submission of valid passport information and eliminate the possibility of indicating that a beneficiary does not have a passport. Generally, passport information is helpful in matching registrations submitted on behalf of the same beneficiary and it should be required for anyone with a valid passport. However, there are legitimate reasons why a registrant may be unable to provide valid passport information, and excluding those registrants is antithetical to ensuring they can petition for the best and brightest.
The proposed rule intends to codify USCIS’s ability to deny or revoke an H-1B petition or its approval if the petition is based on a registration where the statement of facts and any attestations were not true and correct, or were inaccurate, fraudulent, or misrepresentative of a material fact. It also mandates that “[p]etitioners must submit evidence of the passport used at the time of registration.”
By requiring a copy of the passport with the petition filing, USCIS should be able to identify if a passport’s issue date was significantly before the registration date. Suppose the rule also codifies USCIS’s ability to take enforcement action based on untrue or incomplete information provided at the time of registration. In that case, petitioners have a significant disincentive to assert falsely that a beneficiary does not have a passport at the time of registration.
It is reasonable to assume that some beneficiaries may not have valid passports at the time of registration but would be able to obtain them before the filing of the full petition. While taking action to prevent the rampant fraud seen previously is paramount, it does not need to come at the cost of disadvantaging otherwise potentially eligible beneficiaries.
- Remove the 18-month validity period restriction for beneficiary-owners.
The Niskanen Center welcomes the codification of a petitioner’s ability to qualify as a U.S. employer even if the beneficiary possesses a controlling interest in the petitioning business. This is a welcome step towards creating pathways for entrepreneurs to develop and grow businesses within the United States. However, the proposed limitations on the validity periods of initial and first extension petitions would establish unnecessary bureaucratic hurdles. USCIS acknowledges the “significant advantage in promoting the H-1B program to entrepreneurs,” and introduces other controls to ensure that beneficiary-owners meet the criteria for the H-1B, including the requirement that more than 50 percent of the beneficiary’s time be spent performing specialty occupation duties. The proposed rule also clarifies USCIS’s deference policy, stating that when adjudicating a request for H-1B status that involves the same parties and the same underlying facts, USCIS will give deference to its prior determination of the petitioner’s and beneficiary’s eligibility. Because USCIS will have already evaluated the division of duties laid out in the initial petition and will defer to its prior determination unless an error is detected or the facts have changed, limiting the initial and first extension validity periods to 18 months would do little more than create additional administrative burdens for USCIS and the petitioner, potentially disincentivizing beneficiary-owners from applying.
In theory, a beneficiary owning 51 percent of a petitioner could sell just 1 percent of his stake, drop below the “more than 50 percent” ownership threshold, and, in the process, double the maximum validity of his initial petition. While permitting the division of duties to include duties related to owning and directing the petitioner’s business offers an attractive option for specialized beneficiary-owners, the redundant and costly requirements to file extensions every 18 months for the first three years could make the program significantly less attractive to these individuals and employers.
As DHS recognizes the potential benefits of allowing and encouraging more entrepreneurs to utilize the H-1B, the 18-month validity restriction should be eliminated to avoid disadvantaging the same group it hopes will utilize the program more.
- Revise the bona fide job offer requirements to include an in-person component.
Proposed 8 CFR 214.2(h)(4)(ii) states that an eligible U.S. employer must have “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.” As explained in the proposed rulemaking’s discussion section, USCIS already permits these types of work arrangements, although that is not stated explicitly in existing regulations.
Recognizing the flexible nature of work, particularly in a post-pandemic work environment, is essential, and codifying this flexibility is crucial to providing clarity to petitioners and beneficiaries. However, to protect the integrity of the H-1B program and emphasize the importance of having these H-1B workers here in the United States rather than working remotely abroad, DHS should ensure that the regulation does not eliminate the need for H-1B beneficiaries to complete some portion of their work in person within the United States.
The Department of Labor (DOL)’s labor certification process already establishes criteria for third-party or offsite H-1B work locations, so the proposed language could be rewritten to state that an eligible U.S. employer must have “a bona fide job offer for the beneficiary to work within the United States. The job offer may include, but should not be limited to, telework or remote work within the United States during the requested petition validity period.”
- Remove site visits to a beneficiary’s home.
As stated, the Niskanen Center commends efforts to identify and mitigate fraud within the H-1B program. To that end, site visits are a reasonable and often critical measure to maintain the integrity of the program. However, the proposed regulation’s inclusion of the beneficiary’s home as a place of inspection is an unnecessary invasion of privacy that should be removed.
The other provisions of the proposed regulation introduce measures allowing USCIS to evaluate the nature of the beneficiary’s work without entering the beneficiary’s home. The proposed regulation already establishes that USCIS officials must be permitted to interview H-1B workers, including in the absence of the employer or its representative. It states that interviews would take place either on the employer’s property or at a neutral location. Additionally, the proposed rule enhances USCIS’s ability to deny or revoke petitions if a petitioner or beneficiary refuses to cooperate with an inspection or compliance review or if USCIS cannot verify facts related to the petition.
Because site visits are intentionally unannounced and USCIS would retain significant authority to revoke an H-1B petition’s approval if a beneficiary were not compliant, allowing USCIS Fraud Detection and National Security (FDNS) officers to enter beneficiaries’ homes is unreasonable, intrusive, and likely won’t lead to a discovery of fraud. For many, a “home office” consists of a laptop and a couch. The existence of both neither conveys that a beneficiary is working, nor does it determine that a beneficiary is not working. If our above recommendation to include an in-person requirement is enacted, then conducting site visits, interviews, and compliance checks at a workplace outside the home is much more appropriate. Given the improbability that a home visit would yield conclusive evidence and accounting for the administrative burden created by duplicating these efforts in a public workplace anyway, home inspections should not be part of the H-1B site visit initiative.
In all, the proposed regulation offers several exciting modernizations of the existing H-1B program, offering greater flexibility and clarifying existing practices for beneficiaries and petitioners alike. That being said, we hope you will consider making the recommended modifications to ensure that the rule’s implications remain consistent with its intentions and that the H-1B regulations continue to protect our economy and workforce.
Thank you for your consideration and the opportunity to provide feedback on the proposed rule. If you have any questions or need additional information, please do not hesitate to contact me at cesterline@niskanencenter.org.
Sincerely,
Cecilia Esterline
Immigration Research Analyst
Niskanen Center