United States: J-1, L-1 and H-1B policy updates

1 November 2023

The US Citizenship and Immigration Serivces (USCIS) has recently issued new policy guidance on the J-1 and L-1 categories, whilst the Department of Homeland Security (DHS) has published a proposal to modernize the H-1B program. More information on the changes is set out below.

J-1 Policy Clarified

US Citizenship and Immigration Services (USCIS) has issued policy guidance in the USCIS Policy Manual, effective immediately, clarifying the two-year foreign residence requirement for the nonimmigrant exchange visitor (J) classification.

The update adds information about how USCIS determines whether the requirement has been met, the evidence a benefit requestor may submit to show compliance with the requirement, and how it considers situations in which it is effectively impossible for the benefit requestor to satisfy the requirement.

It also corrects an omission, from existing Policy Manual content, of one of the foreign medical graduates’ grounds for waivers of the foreign residence requirement. This update includes the ground and clarifies employment requirements.

The J-1 nonimmigrant classification is for exchange visitors who intend to participate in an approved program in the United States for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or receiving graduate medical education or training.

L-1 Policy Clarified

US Citizenship and Immigration Services (USCIS) has issued policy guidance in the USCIS Policy Manual clarifying that a sole proprietorship may not submit a petition on behalf of its owner because the sole proprietorship does not exist as a distinct legal entity separate and apart from the owner.

This Policy Manual update affirms the existing guidance. The update distinguishes a sole proprietor from a self-incorporated petitioner (such as a corporation or a limited liability company with a single owner), where the corporation or the single member limited liability company is a separate and distinct legal entity from its owner, which may petition for that owner.

This update also clarifies guidance regarding blanket petitions. International organizations submit blanket L-1 petitions on behalf of all individual entities named in the petition. USCIS is updating policy guidance to clarify that the failure to submit an extension of the blanket petition on time does not trigger the three-year waiting period before another blanket petition may be submitted.

This guidance, contained in Volume 2 of the Policy Manual, is effective immediately. The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance on the topic.

The L-1 nonimmigrant visa classification enables a US employer that is part of a qualifying organization to temporarily transfer employees from one of its related foreign offices to locations in the United States. Existing USCIS policy and practice provide that a sole proprietorship may not submit an L-1 petition on behalf of its owner.

Proposed modernization of H-1B program

On 23 October 2023, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking (NPRM) in the Federal Register that would modernize the H-1B specialty occupation worker program by streamlining eligibility requirements, improving program efficiency, providing greater benefits and flexibilities for employers and workers, and strengthening integrity measures.

The H-1B nonimmigrant visa program allows US employers to temporarily employ foreign workers in specialty occupations, defined by statute as occupations that require highly specialized knowledge and a bachelor’s or higher degree in the specific specialty, or its equivalent.

The proposed rule would change how USCIS conducts the H-1B registration selection process to reduce the possibility of misuse and fraud. 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.

Under the new proposal, each unique individual who has a registration submitted on their behalf would be entered into the selection process once, regardless of the number of registrations submitted on their behalf. This 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.

Furthermore, it could also give beneficiaries more choice between legitimate job offers because each registrant who submitted a registration for a selected beneficiary would have the ability to submit an H-1B petition on behalf of the beneficiary.

Among additional provisions, the proposed rule would improve the H-1B program by:

• Streamlining eligibility requirements – criteria for specialty occupation positions would be revised 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 codifies that adjudicators generally should defer to a prior determination when no underlying facts have changed at time of a new submission;
• Providing greater benefits and flexibilities for employers and workers – certain exemptions to the H-1B cap would be expanded for certain non-profit entities or governmental research organizations as well as beneficiaries who are not directly employed by a qualifying organization. DHS would also extend certain flexibilities for students on an F-1 visa when students are seeking to change their status to H-1B. Additionally, DHS would establish new H-1B eligibility requirements for rising entrepreneurs; and
• Strengthening integrity measures – in addition to changing the selection process, misuse and fraud in the H-1B registration process would be reduced by prohibiting related entities from submitting multiple registrations for the same beneficiary. The rule would also codify USCIS’ authority to conduct site visits and clarify that refusal to comply with site visits may result in denial or revocation of the petition.

A 60-day public comment period follows publication of the NPRM in the Federal Register.

Support with US immigration

If you have any US immigration queries including which visa category is right for you, please contact the SSW global immigration team. We are able to provide full support with the visa application process and also post–arrival assistance.

With the help of our global network, we are well equipped to navigate international law and assist with the processing of your visa, whilst ensuring that local immigration rules are met thereafter.

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