On Friday, October 21, 2023, the U.S. Citizenship and Immigration Services (USCIS) posted a proposed regulation to "modernize" the H-1B visa program. The proposed rule would make a number of changes to the program, including:

  • Streamlining eligibility requirements: The proposed rule would revise the criteria for specialty occupation positions to reduce confusion between the public and adjudicators and to clarify 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.
  • Improving program efficiency: The proposed rule would make a number of changes to improve the efficiency of the H-1B program, such as allowing employers to submit H-1B petitions beyond October 1st and codifying the Fraud Detection and National Security site visit program.
  • Providing greater benefits and flexibilities for petitioners and beneficiaries: The proposed rule would provide a number of new benefits and flexibilities to H-1B petitioners and beneficiaries, such as extending F-1 cap-gap protection and establishing new H-1B eligibility requirements for rising entrepreneurs.

The proposed rule is open for public comment for 60 days. After the public comment period closes, USCIS will review the comments and make any necessary changes to the proposed rule. Once the final rule is published in the Federal Register, it will go into effect 30 days later.

The proposed rule is a welcome development for many employers and H-1B beneficiaries. The changes to the eligibility requirements and program efficiency would make it easier for employers to hire and retain H-1B workers, and the new benefits and flexibilities would improve the quality of life for H-1B workers and their families.

However, some critics of the H-1B program have argued that the proposed rule does not go far enough to address the concerns that they have about the program. For example, some critics have argued that the proposed rule does not do enough to prevent employers from using H-1B visas to displace American workers.

It remains to be seen whether the proposed rule will be successful in modernizing the H-1B visa program. However, the proposed rule is a positive step that could make the program more efficient and beneficial for both employers and H-1B workers.