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IMMIGRATION NOVEMBER 17, 2023 | The Indian Eye 34

While the Proposed H-1B Rules Have Many

Positive Features, They May Also Result in

Requests for Evidence and Denials

CYRUS MEHTA that a position may allow a “fundamental activity” to preneurship. The proposal to plication of a body of highly
range of degrees if they have permit a nonprofit entity select H-1B cap registrations by specialized knowledge, and
he Department of Home- a direct relationship to the or governmental research unique beneficiary rather than • Attainment of a bachelor’s or
land Security (DHS) duties of the position; organization that conducts by registration is also salutary higher degree in the specific
Tplans to amend its H-1B • Clarify when an amended or research as a fundamental as it will improve the chances specialty (or its equivalent)
regulations “governing H–1B new petition must be filed activity, but is not primarily in the H-1B lottery. The rule as a minimum for entry into
specialty occupation workers to due to a change in an H-1B engaged in research or where will extend the H-1B the F-1 the occupation in the United
modernize and improve the ef- worker’s place of employ- research is not a primary mis- cap gap from September 30 to States
ficiency of the H–1B program, ment; sion, to meet the definition of April 1 the following to allow There is no requirement
add benefits and flexibilities, • Codify and clarify that if a nonprofit research entity; students who are in Optional in the INA provision that the
and improve integrity mea- there has been no materi- • Provide flexibilities, such as Practical Training to continue required specialized studies
sures.” The notice of proposed al change in the underlying automatically extending the in that status beyond Septem- must be directly related to the
rulemaking (NPRM), expected facts, adjudicators generally duration of F-1 status, and ber 30 if the H-1B petition is position.
to be published in the Federal should defer to a prior deter- any employment authoriza- not approved by October 1 of At issue is whether the oc-
Register on October 23, 2023, mination involving the same tion granted under 8 CFR that year. cupation, in order to qualify for
would also “narrowly impact parties and underlying facts; 274a.12(c)(3)(i)(B) or (C), On the other hand, the an H-1B visa, must require a
other nonimmigrant classifica- • Require that evidence of until April 1 of the relevant proposal to redefine “special- bachelor’s degree in the specific
tions, including: H-2, H-3, F-1, maintenance of status must fiscal year, rather than Octo- ty occupation” will make the specialty. A lawyer would qual-
L-1, O, P, Q-1, R-1, E-3, and be included with the petition ber 1 of the same fiscal year, H-1B program more restrictive ify as a specialty occupation as
TN.” A 60-day public comment if a beneficiary is seeking an to avoid disruptions in lawful and will negate all the good fea- only a degree in law would al-
period starts following publica- extension or amendment of status and employment au- tures. See Stuart Anderson’s low entry into the occupation.
tion of the NPRM in the Feder- stay; thorization for F-1 students Biden Immigration Rule Cop- But INA § 214(i)(1) reads more
al Register. • Change the definition of changing their status to ies Some Trump Plans to Re- broadly. It also ought to encom-
Below is a non-exhaustive summa- “nonprofit research organi- H-1B; strict H-B Visas in Forbes dated pass a marketing analyst, even
ry of highlights. DHS proposes to: zation” and “governmental • Clarify the requirements re- October 23, 2023. Even if the though this occupation may re-
• Revise the regulatory defini- research organization” by re- garding the requested em- proposed rule codifies the def- quire a bachelor’s degree in di-
tion and criteria for a “spe- placing “primarily engaged” ployment start date on H–1B erence policy, it will prove hol- verse fields such as marketing,
cialty occupation” and clarify and “primary mission” with cap-subject petitions to per- low if the next H-1B extension business or psychology. While
mit filing with requested will be evaluated under differ- the proposed regulations would
start dates that are after ent and heightened standards allow range of degrees or multi-
October 1 of the relevant relating to what is a specialty ple bodies of highly specialized
fiscal year; occupation, which lies at the knowledge, provided that each
• Select H-1B cap regis- heard of the H-1B program. All of those qualifying degree fields
trations by unique benefi- the other goodies will become or each body of highly special-
ciary rather than by regis- less significant if employers face ized knowledge is directly relat-
tration; more obstacles in obtaining ap- ed to the position, a position re-
• Clarify that related provals under the altered defi- quiring a business degree may
entities are prohibited nition of specialty occupation. not qualify.
from submitting multiple The proposed regulation As I have explained previ-
registrations for the same seeking to amend the definition ously, the answer lies with how
beneficiary; of “specialty occupation” is of the phrase in the parenthetical
• Clarify that beneficia- great concern as it would incen- “or its equivalent” is interpret-
ry-owners may be eligible tivize USCIS examiners to issue ed in INA § 214(i)(1). In Ta-
for H-1B status, while set- requests for evidence, which in pis International v INS, 94 F.
ting reasonable conditions turn would be burdensome on Supp. 2d 172, the court held
for when the beneficiary employers. that a “position may qualify as
owns a controlling interest The inclusion of the re- a specialty occupation if the
in the petitioning entity; and quired specialized studies being employer requires a bachelor’s
• Clarify that if an H-1B “directly related” to the posi- degree or its equivalent. For
worker will be staffed to a tion does not faithfully interpret the “equivalent” language to
third party, meaning they the Immigration and Nationali- have any reasonable meaning,
will be contracted to fill a ty Act I (“INA”). The proposed it must encompass …….various
position in the third par- rule adds, “A position is not a combinations of academic and
ty’s organization, it is the specialty occupation if attain- experience based training. It
m of requirements of that third ment of a general degree, such defies logic to read the bache-
as business administration or
party, and not the petition-
lor’s requirement of “specialty
CYRUS D. MEHTA & PARTNERS PLLC er, that are most relevant liberal arts, without further spe- occupation” to include only
when determining wheth- cialization, is sufficient to qual- those positions where a specific
er the position is a special- ify for the position. A position bachelor’s degree is offered.”

ty occupation. may allow a range of degrees or The phrase “or its equivalent”
There are some good apply multiple bodies of highly in INA 214(i)(1) is distinct from

  features in the proposals. specialized knowledge, provid- what the H-1B beneficiary is
   
­
€
‚   For example, it codifies ed that each of those qualifying required to possess to qualify
the deference that USCIS degree fields or each body of for specialty occupation. INA
gives to prior approvals. highly specialized knowledge is 214(i)(2) sets forth separate re-
It also allows companies directly related to the position.” quirements, such as completion
to file H-1B petitions on
of a bachelor’s degree or expe-
Under INA § 214(i)(1) a “special-
behalf of owners under ty occupation” is defined as an rience in the specialty through
2 6th Floor

    certain conditions in or- occupation that requires progressively responsible posi-
der to encourage entre- • Theoretical and practical ap- tions relating to the specialty.
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