US agency submits final H-1B modernization rule for federal review: Implementation is nearing
Advancing the H-1B modernization proposal, the US Department of Homeland Security (DHS) has presented a final regulation for federal review. This action moves the rule closer to potential enactment and publication. DHS has suggested the likelihood of implementing the H-1B modernization program gradually, possibly through one or more final rules, with specific provisions taking effect before the start of the FY 2025 H-1B cap process in March 2024.
In a significant step towards the implementation of the H-1B modernization proposal, the US Department of Homeland Security (DHS) has submitted a final regulation for federal review. This move brings the rule one step closer to publication and potential enactment. DHS has indicated the possibility of implementing the H- 1B modernization program in stages through one or more final rules, with certain provisions taking effect before the commencement of the FY 2025 H-1B cap process in March 2024.
The specific details of the final regulation remain undisclosed and will only be revealed upon its publication in the Federal Register. Nonetheless, DHS has underscored its commitment to addressing the misuse of the H-1B cap registration system as a top priority.
As the FY 2025 H-1B cap season approaches, the final rule may incorporate elements from the proposed rule, such as the shift to a beneficiary-centric H-1B cap selection system, along with broader anti-fraud provisions. These provisions aim to bolster DHS's authority in denying or revoking H-1B petitions and invalidating registrations that do not adhere to the new regulations. As TOI had reported in October, the process of conducting the H-1B registration selection process will undergo a complete change. Under the proposal, each unique individual who has a registration submitted on his/her behalf (the beneficiary) would be entered into the selection process only once, regardless of the number of registrations submitted on his/her behalf. DHS in its release had explained that the proposed change would improve the chances that a legitimate registration would be selected, by significantly reducing or eliminating the advantage of submitting multiple registrations for the same beneficiary solely to increase the chances of selection. Under the current process, the more registrations that are submitted on behalf of an individual, the higher chance that individual will be selected in a lottery. Public comments on the proposed version of the H-1Bmodernization rule were accepted by DHS from late October 2023 to late December 2023.Following clearance by the Office of Management and Budget (OMB), which is attached to the White House, the final rule will be published in the Federal Register, accompanied by an implementation timeframe.