High-Skilled Immigration

Modernizing the H-1B Program

A response to DHS’ proposed changes to better support regional innovation and emerging technology career development
December 22nd 2023

IFP submitted two comments to the Department of Homeland Security (DHS) concerning the U.S. Citizenship and Immigration Services (USCIS) notice of proposed rulemaking (NPRM) on modernizing H-1B requirements. 

One comment explains how cap-exempt H-1Bs can support the federal government’s regional innovation efforts, such as Tech Hubs and the Regional Innovation Engines. 

The second comment, supported by a multi-sectoral group of 74 organizations, urges the agency to avoid adopting occupational and educational requirements that would significantly narrow eligibility for H-1Bs, against established adjudication precedent. 

In the two sections below, we provide more detail about our submitted comments. With some thoughtful changes, the rule should improve the H-1B pathway for years to come.

Supporting regional hubs

Supporting regional innovation hubs by hiring international talent through cap-exempt H-1Bs and including a wider variety of organizations in qualified cap-exempt research organizations definition

As we explained in April, updating the regulations governing cap-exempt H-1Bs is a key way the executive branch can support new regional innovation hubs. Regional innovation initiatives are intended to foster R&D ecosystems. Their success will depend in no small part on the talent they can attract, both domestically and internationally. Changes to the eligibility criteria for cap exemption can help ensure that members of the regional innovation hubs can better recruit and retain international talent, furthering the mission of the universities and other nonprofit research institutions anchoring the hubs.

We applaud DHS’s proposed change at 8 CFR 214.2(h)(8)(iii)(F)(4) that a beneficiary’s work should “directly further an activity that supports or advances one of the fundamental purposes, missions, objectives, or functions” of the qualifying institution, rather than furthering the organization’s “essential purpose, mission, objectives, or functions.” The regional innovation hubs specifically are designed to form a coalition of regional partners with synergistic missions. Since hubs and engines are organized with a comprehensive strategic plan designed to foster cooperation, by definition they will have already demonstrated to other agencies that their work furthers the mission of the qualifying institution. 

Additionally, the modified regulation should make clear that some government chartered nonprofits involved in hubs, such as the National Semiconductor Technology Center, should be considered qualifying nonprofit research organizations.

Finally, to fully support regional innovation, we believe that more stages of research should be included in the activities conducted by qualifying organizations. The NPRM specifies that only organizations conducting activities in basic and applied research can be qualified as a research organization for cap-exempt H-1Bs. However, a key goal of the regional hubs is the commercialization of earlier stage research. The regional hubs will ensure that the important developments created within their network will be supported through applied research to commercialization. H-1B regulations should reflect this important support, by ensuring that organizations that work on later stages of technology development can still qualify as cap-exempt research organizations.


  • Clarify the proposed change by providing examples, including that a worker’s duties further a fundamental objective of a qualifying institution, if those duties pertain to their employer’s role in a regional innovation effort that includes the qualifying institution
  • Clarify that advancing regional innovation is a “normal, primary, or essential purpose” of any organization officially participating in a federally sponsored regional innovation initiative
  • Define research organizations to include nonprofits and government entities that conduct research as part of their role in a regional hub
  • Clarify that government chartered nonprofits involved in research through hubs are qualifying nonprofit research organizations
  • Clarify that qualifying research includes not only basic and applied research but can also include later stages of research, such as technology development and transfer

Changing the specialty occupation definition

Emphasizing the importance of course of study and job duties, rather than degree label and job title

The agency’s long-standing approach has been that the H-1B petitioning employer is responsible for proving the connection between the beneficiary’s course of study and the offered job duties, as well as proving that the latter requires the former. However, in the agency’s rewording in the H-1B Modernization NPRM, USCIS’s effort to codify these standards has gone awry. The change, as proposed, would likely be a major deviation from current policy at USCIS.

From FY 2019-2023, there were 21,694 PERMs approved on behalf of H-1B holders for jobs accepting any kind of engineering degree as the minimum requirement (about 12 percent of all PERMs certified for H-1B recipients in the period) and 21,883 PERMs approved on behalf of H-1B status holders for jobs accepting a business degree to satisfy education requirements (also about 12 percent). All of these jobs would likely be excluded under the new definition.

In today’s hiring, it’s essential to select professionals with complementary specialties to form diverse, interdisciplinary teams. This is significant in academia, but also across industry – particularly in emerging science and technology fields, like artificial intelligence and quantum technologies. Adding a new direct relatedness requirement to H-1B adjudications can only serve to create uncertainty and complexity for employers creating their interdisciplinary teams. As written in the H-1B Modernization NPRM, the new phrasing for the specialty occupation definition and criteria for specialty occupation positions is not precisely equivalent to the agency’s long-established interpretation. Instead, it sets up an impractical standard for employers.

USCIS explains in the new NPRM that referring to the title of the degree is only for “expediency,” and that the agency separately evaluates the beneficiary’s actual course of study, “rather than merely the title of the degree.” This practice, if followed, would be consistent with university practices in reporting degrees conferred. USCIS further states that while some fields of university study may be more generalized than others, the degree’s label cannot determine how general the course of study is. Nevertheless, USCIS has now proposed a binding regulation that will guide adjudicators for decades to come, over many different presidential administrations, that specifically refers to “degrees” and “positions” in ways that fail to accurately capture the contours of preexisting agency practices. 

The agency can achieve its goal by revised regulatory text that communicates that adjudicators are required to examine the job duties of the position offered by the employer, and the courses completed in a degree-granting program (U.S. baccalaureate or higher, or equivalent), to confirm that a specific body of knowledge is required to perform the job duties and that the beneficiary has attained that body of knowledge.


  • Do not require a separate showing that a degree field be “directly related” to the job duties for a specialty occupation
  • Clarify that “courses of study” are relevant rather than the degree field per se
  • Clarify that job duties are relevant rather than merely the job title of the position per se