October 09, 2023

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The U.S. Citizenship and Immigration Services (USCIS) has begun updating the H-1B visa program. The USCIS has started the process by proposing regulations to the Office of Management and Budget (OMB) for review. This proposal is the first step in the regulatory process for the highly anticipated rule, which would significantly amend many H-1B visa program aspects.

The proposed regulation’s actual contents and revisions to the H-1B program are currently unknown. The USCIS has not yet published the proposal in the Federal Register. However, the agency has scheduled to publish a notice for December 2023. Once it appears in the Federal Register, the USCIS must allow a 30-60-day period for public comment. The publication date depends on the federal review process, which usually takes several months.

The USCIS has described the proposed regulation, which strongly indicates the rule’s intent. According to USCIS, it will: 

“Revise the regulations relating to ’employer-employee relationship’ and provide flexibility for start-up entrepreneurs; implement new requirements and guidelines for site visits including in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data; provide flexibility on the employment start date listed on the petition (in limited circumstances); address ‘cap-gap’ issues; bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system; and clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions.”

This amendment focuses on preventing potential fraud in the H-1B registration process. This focus is due to the significant number of H-1B beneficiaries receiving multiple registrations from different employers. When this happened during the electronic registration period for fiscal year 2024, the USCIS suspected and acted on extreme suspicion of fraud.

As a result, the registration process underwent investigations and involved referrals to law enforcement. The USCIS likely intends to address the potential for future abuse by introducing this bill. The agency hopes to avoid similar issues in the coming fiscal years.

While preparing for changes like this bill, employers should double their focus on compliance. One key area of struggle is the employment eligibility verification (Form I-9) process. Some employers use or require E-Verify as well, further complicating the process. An effective tool for correctly completing Form I-9s and creating E-Verify cases is using an electronic I-9 management system with the optional E-Verify integration. This system guides personnel through each step, providing secure storage and notifications to take further action when needed.

When it comes to your employees, automation makes eligibility verification quick and simple. Ensure compliance today with I-9 Compliance.

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