Will Indians benefit from proposed changes to H1-B visa process?

The Joe Biden administration in the US has proposed several changes to the H1-B visa process. The rules, which are slated to be published by the US Citizenship and Immigration Services (USCIS) today in the Federal Register, have been proposed without changing the Congress-mandated 60,000 limit on the number of such visas the US issues every year. The H1B visa is a non-immigrant visa that allows US companies to employ foreign workers in speciality occupations that require theoretical or technical expertise. It is typically issued for three to six years to employers to hire a foreign worker. But H-1B holders who have begun the Green Card process can often renew their work visas indefinitely. The technology companies depend on it to hire tens of thousands of employees each year from countries like India and China. The Biden administration is claiming that the changes in the H-1B foreign workers programme will improve efficiency by streamlining eligibility, providing more flexibility to F-1 students, entrepreneurs and those working for non-profit bodies and ensuring better condition for other non immigrant workers. But what are the proposed changes? And will Indians benefit? Let’s take a closer look: What are the proposed changes? Observing that the H-1B non-immigrant visa programme allows US employers to temporarily employ foreign workers in speciality occupations, defined by statute as occupations that require highly specialised knowledge and a bachelor’s or higher degree in the specific speciality or its equivalent, the DHS said 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 chances of that person being selected in a lottery. Under the new proposal, each 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. 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,” it said. Under the proposed rule, the criteria for speciality 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. [caption id=“attachment_13287032” align=“alignnone” width=“640”] Representational image.[/caption] 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. Under the proposed rule, certain exemptions to the H-1B cap would be expanded for certain nonprofit entities or governmental research organisations as well as beneficiaries who are not directly employed by a qualifying organisation. The DHS would also extend certain flexibility for students on an F-1 visa when students are seeking to change their status to H-1B. Additionally, the department 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 Making the proposed rules public for stakeholders to give their comments and feedback, the Department of Homeland Security (DHS) said the proposed changes in the rules are aimed at streamlining eligibility requirements, improving programme efficiency, providing greater benefits and flexibilities to employers and workers, and strengthening integrity measures. In a statement, the Secretary of Homeland Security Alejandro N Mayorkas said 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. Will Indians benefit? As per The Times of India, the proposals are a ‘mixed bag’ for H1-B visa seekers – an overwhelming majority of whom are Indian. As New-York based immigration attorney Cyrus B Mehta told the newspaper, “There are some features in the proposed rule that will incentivize the USCIS to issue requests for evidence and potentially deny the H-1B application” Mehta explained that a position would not be considered a specialty occupation for H-1B purposes if attainment of a general degree, such as business administration or liberal arts, without further specialization, is sufficient to qualify for the position. “For instance, if an H-1B petition is filed on behalf of a marketing manager who has a degree in business administration without any specialization in marketing, the H-1B petition may not be approved. The comments to the rule also provide that a petition with a requirement of an engineering degree in any field of engineering for a software developer would not generally satisfy the legal requirements for H-1B classification.”

US-based author Soundarya Balasubramani explained to NDTV that the government was narrowing the definition of a speciality occupation.

“For example, you have a job, a role that only requires a generic degree, but not speciality training. Then you cannot use that job role to hire an employee on H-1B visa.” Mehta said it would become more burdensome for an employer who is a sponsor to get such an approval from the client – which would lead to several requests for proof and the H1-B application possibly being turned down. However, Mehta added, there will be no need to demonstrate an employer and employee relationship under common law – which the USCIS often cited to deny H1-B requests if the employer could not prove that it controlled the H-1B worker’s employment at a third party site. Balasubramani said if the proposed changes go through, employers would no longer be able to ‘game the system’. “They can come and check that you are a legitimate employer and that you are not just setting up a sham company to hire employees on H-1B,” she added. [caption id=“attachment_13287052” align=“alignnone” width=“640”] Experts describe the proposed changes as a mixed bag for H1-B visa applicants.[/caption] This is also good news for entrepreneurs. As per Hindustan Times, the changes will let H1-B visa petitioners qualify as employers even if the H-1B visa recipient holds a majority ownership stake in the business. The change will thus let noncitizen entrepreneurs contribute to the US economy. Hindustan Times quoted Greg Siskind, partner at Siskind Susser PC, as saying that those selected should get higher wages – and be empowered with a choice among potential employers. Emily Neumann, attorney at Houston-based business immigration law firm Reddy & Neumann, told The Times of India some of the changes level the playing field. “Allowing each registrant only one entry while still allowing for multiple legitimate job offers serves to put everyone on an even playing field,” Neumann said. “Extending cap gap relief is particularly beneficial for Indian students in the United States, as it provides them with more time to secure H-1B status without the risk of losing employment opportunities,” Neumann added. However, she cautioned that some changes like third party companies needing more documents and mandatory site visits would create difficulties for Indian H1-B visa applicants. “These will create challenges and additional scrutiny for Indian nationals seeking H-1B visas. These changes aim to prevent fraud but could also impact legitimate employment. So, while there are benefits, Indian nationals may need to navigate increased scrutiny and requirements in certain cases,” Neumann added.

But Balasubramani was sure to point out that nothing has changed yet.

“Nothing is final yet. It’s in the early stages of being proposed. One the public gives comments, the Department of Homeland Security will collect all inputs and publish a final rule, hopefully sometime in late 2024. Until that comes into effect, there is no change in status quo,” she added. Indian-American Ajay Bhutoria, a leading advocate for immigration reform welcomed the proposed ‘Modernizing H-1B Requirements, Providing Flexibility in the F-1 Programme, and Programme Improvements Affecting Other Nonimmigrant Workers’ regulation. These proposed changes mark a significant step towards streamlining our immigration system and making it more accessible for highly skilled professionals and students from around the world, Bhutoria said. “The proposed reform plan reflects a thoughtful approach to addressing some of the long-standing issues in the H-1B visa programme, including providing more flexibility to F-1 students and improving conditions for other non-immigrant workers. We appreciate the DHS’s commitment to fostering an environment that is conducive to attracting global talent and maintaining the competitiveness of American industries,” Bhutoria added. With inputs from agencies