DHS Proposes New Rules for the H-1B Program

The Center for Immigration Studies (CIS) submitted a public comment on December 22, 2023, to strengthen the Department of Homeland Security (DHS)’s proposal to amend regulations governing the H-1B nonimmigrant visa program.

In our comment, CIS argued that portions of DHS’s rule facilitate fraud and abuse in the H-1B program, and do not go far enough to protect U.S. or foreign workers. Moreover, CIS instructed DHS to withdraw unauthorized provisions that, if promulgated, would allow employers who do not qualify for cap-exempt workers to nevertheless game the system, as well as allow certain F-1 nonimmigrant visa holders (students) to automatically extend their stay and work in the United States after graduation, in direct violation of the law.

Additionally, CIS recommended that DHS amend its regulatory definition of “specialty occupation” to conform to the requirements set by Congress and to require employers to demonstrate an ability to pay their current and requested workers before U.S. Citizenship and Immigration Services (USCIS) approves an H-1B petition.

CIS also recommended that DHS strengthen the H-1B program by requiring USCIS to select the highest paid H-1B registrations when demand for H-1B visas exceeds the annual cap instead of conducting a random lottery. As CIS has explained, such policy would encourage employers to offer higher wages, or to petition for positions requiring higher skills and higher-skilled workers that are commensurate with higher wage levels, to increase the likelihood of selection for an eventual petition. At the same time, this reform would discourage abuse of the program to fill lower-paid, lower-skilled positions, which has allowed businesses to replace or undercut U.S. workers and underpay H-1B beneficiaries.

Finally, CIS urged the Biden administration to rescind its nonenforcement policies that prohibit its DHS officers from uncovering immigration and labor violations in large portions of the United States. Without serious deterrent measures in place, including robust enforcement efforts, the H-1B nonimmigrant visa programs remain vulnerable to fraud and abuse and will continue to undermine U.S. workers, who often work alongside and compete with H-1B beneficiaries.