The Biden administration is proposing to change rules relating to H-1B specialty occupation visas coveted by Indian techies, to “reduce undue burdens on employers, and prevent fraud and abuse in the immigration system.”
The US Citizenship and Immigration Services (USCIS) is set to publish the proposed rules in the Federal Register Monday opening a 60-day public comment period.
READ: 70 Indians sue US for denying H-1B visas over employers’ fraud (August 15, 2023)
No change is proposed in the annual cap of 65,000 mandated by Congress. For the last few years, Indian professionals have been cornering about three-fourths of these visas.
The proposed changes “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,” according to USCIS press release.
“The H-1B program helps US employers hire the employees they need to meet their business needs and remain competitive in the global marketplace while adhering to all US worker protections under the law,” the release stated.
READ: Indians bagged 300,000 H-1B visas in FY 2021, 74% of total (April 18, 2022)
“DHS continues to develop and implement regulations that increase efficiency and improve processes for employers and workers navigating the immigration system,” said Secretary of Homeland Security Alejandro N. Mayorkas.
READ: US agencies to share data to probe H-1B fraud (August 10, 2020)
“The Biden-Harris Administration’s priority is to attract global talent, reduce undue burdens on employers, and prevent fraud and abuse in the immigration system.”
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 the chance that an individual will be selected in a lottery.
READ: Things to know before H-1B visa stamping season (May 31, 2023)
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.
H-1B initial electronic registration selection for FY 2023 completed (March 30, 2022)
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 file 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 filing;
- Providing greater benefits and flexibilities for employers and workers – certain exemptions to the H-1B cap would be expanded for certain nonprofit 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.