# Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2023-23381 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** October 23, 2023 - **Citation:** 88 FR 72870 ## Text 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 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. 1 See, 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-eo-13932-modernizing-and-reforming-assessment-and-hiring-federal-job . 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, 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: 2 Although 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). • Section 101(a)(15) of the INA, 8 U.S.C. 1101(a)(15), which establishes 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 3 See 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). 4 Up 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). 5 The 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). 6 See 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.”). 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. 7 See 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.” 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 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. 8 See “Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens,” 84 FR 888 (Jan. 31, 2019). 9 Id. 10 See 8 CFR 214.2(h)(8)(iii). 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 11 See INA section 101(a)(15)(F)(i)-(ii), 8 U.S.C. 1101(a)(15)(F)(i)-(ii); 8 CFR 214.2(f)(3). 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 full-time 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, cap-subject 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 12 See 8 CFR 214.2(f)(10); “Pre-Completion Interval Training; F-1 Student Work Authorization,” 57 FR 31954 (July 20, 1992). 13 See “Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap 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. 16 See “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). 17 See “Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap 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 cap-gap 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. 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, 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. 18 See, 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/legal-docs/Madkudu-settlement-agreement.pdf (last visited Sep. 5, 2023). 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' long-standing practice. 19 See Caremax Inc v. Holder, 40 F. Supp. 3d 1182, 1187-88 (N.D. Cal. 2014). 20 Although 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 ). 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). 21 See, 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”). 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 22 The 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. 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), 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 23 See Royal Siam Corp., 484 F.3d at 147. 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. 24 The 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. 25 These 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 ). 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. 26 See Merriam-Webster Dictionary at https://www.merriam-webster.com/dictionary/normal (last visited Aug. 24, 2023). 27 See 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.”). 28 See 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-1b-specialty-occupations (last updated Feb. 8, 2023). 29 See 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). 30 The 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-1BComputerRelatedPositionsRecission.pdf (Mar. 31, 2017). 31 See Innova, 983 F.3d at 432 (emphasis in original). 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 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. 32 Numerous 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). 33 See 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.' ”). 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. 34 DHS generally determines a position's occupation or occupational category by looking at the standard occupational classification (SOC) code designated on the LCA. 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 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 35 See 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 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 H1-B [sic] visas to positions which require specialized experience and education to perform.”). 36 First-time hirings are not precluded from qualifying under one of the other criteria. 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. 37 The 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.” 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 ). 38 See 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 . 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 (MSA) often will have an impact on the prevailing wage, requiring a new LCA. 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. 40 Pursuant 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). 41 See 20 CFR 655.731(a)(2). 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 42 See 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 . 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 43 See id. at 7. 44 See id. 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 hard-copy, in the new work location on or before the date that the H-1B worker performs any work at the new location. 46 45 See 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-h1b-worksite (“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.”). 46 See 20 CFR 655.734(a)(2). 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. 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 47 See 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). 48 See 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). 49 See 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). 50 See 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 . 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. 51 See id. 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 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. 52 This is subject to the exception in 8 CFR 214.1(c)(4). 53 See 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). 54 See id. 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. 55 See 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). 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 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 56 Proposed 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. 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 Third-Party Worksites” (Feb. 22, 2018)). 58 57 See 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). 58 USCIS 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 ). 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 initially requested validity period end- 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 six-year 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 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. 59 8 CFR 214.2(h)(19)(iii) and (iv) pertains to organizations that are exempt from the ACWIA fee for H-1B petitions. 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. 60 See 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 . 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. 61 Although 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). 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 214.2(h)(8)(iii)(F)( 2 )(iv) and (h)(19)(iii)(B)( 4 ), and would bring more clarity and predictability to decision-making, 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 62 As 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. 64 See, 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.”). 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. 65 See “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). 66 See “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). 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). 67 See 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.'”). DHS believes that the “primarily” and “primary” requirements at curr [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2023-23381. Public record. Not legal advice.