New H1B Rules
The US Department of Homeland Security (DHS) has proposed a new plan to modernize the H-1B worker program. The goal is to make the program more efficient and flexible for both companies and workers. The proposed changes would also lower the eligibility standards and increase integrity safeguards.
This article will cover the main points of the proposed regulation changes and their potential consequences.
Streamlining Eligibility Requirements:
The proposed rule, which is currently being considered, seeks to revolutionize the eligibility requirements for specialty occupation positions. It aims to provide clear, concise, and comprehensive guidelines to the public and adjudicators, reducing any confusion that might arise from the existing rules. The proposal emphasizes that a position can have a range of acceptable degrees, as long as there is a direct correlation between the required degree field(s) and the duties of the position. If this change applied correctly, it will reduce the amounts of RFEs applicants receive, and will set clear guidelines as to which occupations/ degrees will qualify for H1B.
This shift in the focus of the rule is intended to make the H-1B program more inclusive, efficient, and effective by accommodating a broader spectrum of qualified individuals. Previously, the selection process was as such: first the Master cap lottery would take place, and then the remaining applications would participate in the lottery with the non-selected Master petitions. Now, the general pool of applicants will be selected first, and then only the Master’s pool. It is believed to increase the number of Master -educated beneficiaries to be selected.
The United States Citizenship and Immigration Services (USCIS) is set to bring about an improvement in the efficiency of the adjudication process through the implementation of a new principle: deference to prior approvals. This principle will require adjudicators to generally defer to a prior determination when there have been no changes to the underlying facts at the time of a new filing. This year, the registration fee will remain $10, but in 2025 it will be $215.
Cap Exempt Organizations
New organizations will be added to the pool of companies that may enjoy cap-exempts status for H1B purposes: “non profit research organizations” and “government research organizations”.
This measure is expected to not only expedite the adjudication process but also ensure consistency in decision-making. The USCIS aims to achieve this by minimizing redundant assessments, which will in turn make the application process smoother for both employers and foreign workers. By adopting this principle, the USCIS hopes to streamline the adjudication process by reducing the need for repetitive assessments, resulting in quicker decision-making and an overall improvement in the application process.
Revamping the H-1B Registration Selection Process:
A noteworthy change being proposed pertains to the selection process for H-1B registrations. The current process is susceptible to fraud and misuse, which is why USCIS is considering a revamp. The proposed model will give every individual an equal chance of selection, irrespective of the number of registrations submitted on their behalf. This shift in strategy aims to counter the unfair advantage gained by submitting multiple registrations for the same beneficiary, ultimately promoting a more transparent and equitable system. It is believed to be achieved by selecting applicants based on their passport numbers and not by registrations that were filed for them. As such, the applicant must use the same passport number for the registration if multiple companies are filing for them. If such an applicant is selected, all employers will be able to file H1B petitions for them within the established deadlines. Previously, the process consisted of selection of the registrations, and multiple companies could submit for the same petitioner increasing that petitioners chances to be selected but at the same time adversely affecting chances of others.
Providing Greater Benefits and Flexibility:
The proposed rule introduces several measures to enhance benefits and flexibility for both employers and workers. Certain exemptions to the H-1B cap would be expanded for specific nonprofit entities or governmental research organizations. Additionally, beneficiaries not directly employed by a qualifying organization would be eligible for extended exemptions. Notably, the rule would extend certain flexibility for students on an F-1 visa seeking to transition to H-1B status. Moreover, new eligibility requirements for rising entrepreneurs signal a proactive approach to attracting and retaining global talent.
Strengthening Integrity Measures:
The proposed rule has been designed to address the issue of misuse and fraudulent activities in the selection process by incorporating robust integrity measures. One of the critical steps towards ensuring a fair selection process is the prohibition of related entities from submitting multiple registrations for the same beneficiary. This measure aims to eliminate the possibility of any unfair advantage to a particular entity, thereby promoting a level playing field for all participants. Again, the beneficiary now will be able to use only one passport for the registration, and must have a valid passport at the time of the registration.
In addition to this, the rule also formally codifies the United States Citizenship and Immigration Services (USCIS) authority to conduct site visits, reinforcing its ability to verify the authenticity of submitted information. This move is crucial as it enables USCIS to conduct on-site inspections and gather additional information necessary to verify the accuracy of the information provided in the application. In cases where the petitioner refuses to comply with site visits, the proposed rule states that the petition may be denied or revoked, underscoring the DHS's commitment to maintaining the program's integrity.
One of the most significant changes will result in extending the cap-gap work authorization of the qualified applicants beyond October 1 to April 1.
Also, only one beneficiary will be counted towards the lottery pool, no matter how many companies register that particular beneficiary.
The proposed rule's integrity measures aim to ensure that the selection process is fair and that the program's benefits are distributed equitably among all participants. By implementing these measures, the DHS hopes to strengthen the program's credibility and promote public trust in the H-1B visa program.
The modernization of the H-1B speciality occupation worker program through a proposed rule is a significant move towards aligning the immigration system with the needs of U.S. employers and the global talent pool. The DHS intends to strike a balance that benefits both employers and foreign workers, while upholding the integrity of the immigration system. This will be achieved by streamlining eligibility requirements, improving program efficiency, providing greater benefits and flexibility, and strengthening integrity measures. It is essential to note the potential positive effects of these changes on the U.S. economy and its competitiveness in the global marketplace, as the public participates in the rule-making process.
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