Proposed Easing of H-1B Visa Rules in the U.S.

By Sanwar Ali:

Navigating the Evolving Terrain of U.S. Specialty Occupation Visas

Introduction

The H-1B visa, essential for businesses in the U.S. seeking skilled foreign professionals, is set for significant reform. In November 2023, the Department of Homeland Security (DHS) unveiled a Notice of Proposed Rulemaking (NPRM) aimed at modernizing this crucial visa category. These reforms, targeting a broad spectrum of elements from the definition of 'specialty occupation' to the visa lottery system, reflect an effort to adapt to evolving industry needs and enhance the program's efficiency and integrity.

H-1B Visa Eligibility

Redefining “Specialty Occupation”

The NPRM proposes a modernized definition for 'specialty occupation'. The updated definition now emphasizes a direct relationship between the required degree field(s) and the job duties, allowing more than one acceptable degree field. This change acknowledges the complexity of modern job roles, moving away from the historically narrow interpretation that has sometimes hindered H-1B sponsorship for new-age positions.

Empowering H-1B Visa Entrepreneurs

In an encouraging move for entrepreneurs, the proposed rule opens up H-1B eligibility to beneficiary-owners. This provision grants more job role flexibility, as long as the beneficiary-owner primarily performs specialty occupation duties. For initial petitions and first extensions by beneficiary-owned entities, the validity period will be limited to 18 months, as opposed to the standard three years.

Amended Petitions Requirements

The NPRM clarifies when an amended H-1B petition is needed due to worksite changes. Changes within the Metropolitan Statistical Area (MSA) do not require a new petition, whereas changes outside the MSA do. This clarification aims to reduce administrative burdens and streamline the process for employers and employees.

Third-Party Worksite Provisions

For H-1B workers at third-party sites, the position's qualification as a 'specialty occupation' will now be assessed based on the third-party's job requirements. This marks a significant shift from the current practice where the petitioning employer's requirements determine the position's qualification.

H-1B Cap Lottery Revisions

Tougher Registration Requirements

The NPRM proposes a 'beneficiary-centric' selection process to address issues of multiple filings for the same beneficiary. This approach ensures each beneficiary is counted once for selection purposes, thereby promoting fairness and reducing the advantage of filing multiple registrations.

Extending the ‘Cap-Gap’ Period

The proposed extension of the F-1 OPT 'cap-gap' period to April 1 of the following year offers continuity for students transitioning to H-1B status. This change is particularly beneficial in light of USCIS processing delays and the multiple H-1B registration lottery selections.

Expansion of H-1B Quota Exemptions

The rule broadens the criteria for H-1B cap exemptions, making it possible for a wider range of organizations and roles to qualify. This expansion is particularly significant for nonprofit and governmental research organizations, offering them greater flexibility in employing foreign talent.

Codifying Site Visit Authority and Deference Policy

The proposed rule aims to codify DHS's authority to conduct H-1B site visits as part of its Fraud Detection and National Security program. This codification underscores the commitment to ensuring compliance with H-1B program requirements. Additionally, the rule aims to codify the USCIS 'deference' policy, providing more certainty for employers in extending the status of employees with a nonimmigrant visa.

Additional Reforms

The NPRM introduces a range of additional changes, including revisions to the definition of 'U.S. employer', which now encompasses a broader range of entities and acknowledges remote work scenarios. The rule also proposes provisions to ensure genuine job offers in specialty occupations, enhancing the program's integrity.

Conclusion

The proposed changes to the H-1B visa program signal a significant evolution in U.S. immigration policy. These updates aim to balance the needs of the U.S. labor market with the integrity and efficiency of the immigration system. As these changes are still in the public comment period, their final form may yet evolve. However, the direction of these reforms indicates a commitment to modernizing the H-1B visa program, making it more adaptable and responsive to current industry demands.

workpermit.com helps with US Work Visa: L1, H1B, E2, and O1 Visas

There are various types of US visas that individuals can apply for, depending on their circumstances. Some of the most common employment-based visas include:

• L1 visa: This visa is for intracompany transferees who work in managerial or executive positions or have specialized knowledge.

• H1B visa: This visa is for specialty occupations that require theoretical or technical expertise in specialized fields.

• E2 visa: This visa is for investors who have made a significant investment in a US business and, management or essential skills employees.  Only certain nationalities can apply.

• O1 visa: This visa is for individuals with extraordinary abilities in the arts, sciences, education, business, or athletics.

Workpermit.com is a specialist visa services firm with over thirty years of experience dealing with visa applications. For more information and advice, please contact us on 0344 991 9222 or at london@workpermit.com(link sends e-mail)