Immigration advocates look at proposed changes rolled out by the Biden administration “to modernize and improve the efficiency of the H-1B program” coveted by Indian professionals as a mixed bag.
READ: Everything you need to know about H-1B visa program (April 28, 2022)
The four key changes to the program are:
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.
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
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 the time of a new filing.
Jeremy Neufeld, a senior immigration fellow at the Institute for Progress where he leads the immigration policy portfolio, welcomed the “big proposed overhaul of the H-1B program.”
The changes he was “most excited about” included expanded H-1B cap exemptions that would make it easier for research organizations to qualify for cap-exempt H-1Bs. This would be especially helpful for new regional innovation hubs.
“Automatic cap-gap extensions will make it easier for international students to stay here after they graduate,” he wrote on X, formerly Twitter. The new rule would also make it easier for immigrant founders to stay here on H-1Bs to grow their companies, Neufeld wrote.
A big proposed overhaul of the H-1B program was published today in the federal register!
Here are the five changes I'm most excited about: 🧵 pic.twitter.com/BDV9osVqjL
— Jeremy Neufeld (@JeremyLNeufeld) October 23, 2023
However, David Bier, associate director of immigration studies at the Cato Institute described the regulation as “a very modest attempt to make the H-1B program work a little bit better than it does now.”
In balance, the proposal liberalizes certain aspects of the H-1B, while tightening regulations that lawyers worry could make the application process more difficult, according to the Hill.
For many H-1B serves as a bridge between college or graduate school in the United States and permanent residency or naturalization, Bier said. But for many others, the H-1B is a trap.
Green cards are subject to a per-country cap, where no one country can receive more than 7% of the annual allocation. That leaves nationals of countries such as India, which is a heavy user of H-1Bs, stuck in decades-long backlogs, renewing their H-1Bs yearly after the two three-year periods end.
“The fact going forward is that there aren’t enough green cards, that the cap is going to be filled very quickly for green cards this year, and it’s not going to be just Indians anymore. Everybody’s going to be starting to face increasing wait times,” Bier told the Hill.
Because current regulations make it risky and difficult to switch employers, workers on green card backlogs are at heightened risk for labor abuses. The new regulation does not address that issue, said Bier, and it adds language that could make it more difficult to obtain the visa in the first place.
Immigration lawyer Cyrus Mehta wrote in a blog post that the new regulation’s tightening of rules to match college and graduate school degrees with occupations “will make the H-1B program more restrictive and will negate all the good features.”
“The proposed regulation seeking to amend the definition of ‘specialty occupation’ is of great concern as it would incentivize [USCIS] examiners to issue requests for evidence, which in turn would be burdensome on employers,” wrote Mehta.
The administration’s new proposal would adopt language similar to a Trump administration proposal saying an applicant’s job needs to be “directly related” to their studies and to the needs of any given job.
Because people often study one thing and end up working in a different field, immigration law experts are worried this measure could create unnecessary red tape, the Hill said.