On October 20, 2023, the Department of Homeland Security (“DHS”) issued a Notice of Proposed Rulemaking to modernize and streamline the H-1B specialty occupation worker program. Many of the proposed updates will directly impact the tens of thousands of F-1 students studying in Pennsylvania. Those students wishing to join the United States workforce need to enter the H-1B cap lottery, or otherwise pursue H-1B status outside of the lottery.
Students enrolled in F-1 educational programs in the United States typically turn to the H-1B program after graduation to work for a U.S. employer. The H-1B visa is often the only visa option available to these students once they have exhausted the periods of work authorization allowed under the post-completion Optional Practical Training (“OPT”) program. The current regulations governing the H-1B cap registration and application process have presented several issues for international students – namely unintended gaps in work authorization, shortening of H-1B validity periods, and decreased chances of lottery selection.
Among the many changes, DHS offers potential relief for F-1 students by extending the regulatory limit on “cap gap” work authorization beyond the October 1 deadline. To accommodate the increased processing delays, DHS proposes amending this regulation so those eligible for cap gap may have their work authorization extended until April 1 of the fiscal year for which the H-1B is filed, or until the start date of the approved H-1B petition, whichever is earlier.
After graduation, international F-1 students may only get work authorization post-completion OPT for one year. If their degree is in a STEM field, they may eligible for an additional two years of work authorization. To bridge the gap between the end of their F-1 work authorization and the regulatory H-1B start date of October 1, students with timely-filed H-1B petitions may qualify for “cap gap,” which is an automatic extension of their work authorization until October 1 of that year.
DHS notes in the proposed rule that USCIS routinely prioritizes petitions requesting a change of status from F-1 to H-1B. However, their prioritization of these petitions has not been enough to accommodate the increasing volume of petitions received each year, and the resulting delays have caused significant disruptions to work authorization. Under the current rule, F-1 students working under the cap gap extension must stop working on October 1 if their H-1B petition is still being adjudicated as of that date. The proposed rule would account for the recent delays and extend work authorization until the following April 1. DHS cites data collected from fiscal years 2016 to 2022 showing that USCIS was able to adjudicate approximately 99% of cap-subject petitions requesting a change of status from F-1 to H-1B by April 1 of the relevant fiscal year. It is based on this data that DHS has determined that it would be reasonable to allow qualifying F-1 work authorization to be automatically extended until April 1 of the relevant fiscal year.
Additionally, DHS proposes eliminating the regulatory language requiring that H-1B employment start on the first day of the fiscal year (October 1), providing flexibility for the requested start date. This update is particularly beneficial given the multiple lotteries being held annually to reach the H-1B cap limit. This proposal purports to accommodate cap-subject employees selected in subsequent lotteries, particularly where the filing deadlines surpass the October 1 start date. This flexibility allows for cap-subject petitions to request the full three-year period, preventing the shortening of valid H-1B time when a petition is filed after October 1.
Perhaps further benefiting F-1 students is DHS’s attempt at curbing registration abuse by proposing that selection be based on the individual beneficiary as opposed to the current practice of selecting based on registration. The current practice allows for numerous employers to submit separate entries naming the same beneficiary, hereby increasing that beneficiary’s chances of lottery selection. DHS cites the data collected by the USCIS Office of Performance and Quality, which clearly shows that the number of individuals with more than one registration submitted on their behalf has been increasing significantly in recent years. Of the roughly 484,000 registrations submitted for the fiscal year 2023 H-1B cap lottery, there were only approximately 357,000 unique beneficiaries. This data also notes that the largest number of registrations submitted on behalf of one beneficiary was 83 registrations.
Acknowledging that an individual may have more than one legitimate job offer, DHS is not aiming to prohibit multiple registrations on behalf of one individual. Instead, they have proposed that selection be based on the individual beneficiary to afford all entries the same opportunity to be selected in the lottery to maintain the integrity and legitimacy of the H-1B program. Though many of the proposed updates would directly impact F-1 students seeking to change to H-1B status, the extension of the cap gap period and flexibility to the start date are two that directly address the main concerns that have arisen since the registration system was implemented in 2020. If these proposed changes are included in the final rule, it is likely the number of lotteries conducted each year will decrease, decreasing the anxiety surrounding the current H-1B registration and application processes and, hopefully, allowing for a smoother change of status from F-1 to H-1B for foreign nationals and their employers.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the November 8, 2023 edition of The Legal Intelligencer© 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
