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Comparison of the H-1B current and the latest-proposed rules

The H-1B nonimmigrant visa program allows U.S. employers to temporarily employ foreign workers in specialty occupations that require highly specialized knowledge and a bachelor’s or higher degree in the specific specialty or its equivalent. The current rules for the total 85,000 selection of H-1B is through lottery, which is known to be misused and a fraudulent process.

Latest-proposed rules from DHS and USCIS

The Department of Homeland Security (DHS), through U.S. Citizenship and Immigration Services (USCIS), published a Notice of Proposed Rulemaking (NPRM) on October 20, 2023. This proposal is said to provide more streamlined eligibility requirements, efficiency, more significant benefits, flexibility, and integrity. The 60-day public comment period starts following the publication of the NPRM in the Federal Register, which will end on December 22, 2023. Until now, DHS has not released further details about the public comment.

The chart below compares the difference between the current and proposed rules for the H-1B program:

Current Rules

Proposed Rules

Selecting Process

The more registrations submitted on behalf of an individual, the higher chance that individual will be selected in the lottery.

  1. 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 submitted on their behalf.

  2. prohibiting related entities from submitting multiple registrations for the same beneficiary

criteria for specialty occupation positions

Specialty occupation is statutorily defined as requiring:

  1. Theoretical and practical application of a body of highly specialized knowledge, and

  2. 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 U.S.

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.

Deference Rules

Clarifying that adjudicators generally should defer to a prior determination when no underlying facts have changed at time of a new filing

Cap-exempt Range

Generally speaking, employment offers at institutions of higher education or related or affiliated nonprofit entities, or nonprofit research organizations, or governmental research organizations cannot be counted against the annual H-1B cap.

  1. Expanding the definitions of certain nonprofit entities or governmental research organizations as well as beneficiaries who are not directly employed by a qualifying organization. 

  2. DHS would also extend certain flexibilities for students on an F-1 visa when students are seeking to change their status to H-1B. 

  3. DHS would establish new H-1B eligibility requirements for rising entrepreneurs

Site Visits Authorization

Codify USCIS’ authority to conduct site visits and clarify that refusal to comply with site visits may result in denial or revocation of the petition


DHS Press Release: DHS Issues Proposed Rule to Modernize the H-1B Specialty Occupation Worker Program, 


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