DHS revamps H-1B program to help employers, students

New rule allows US employers to more quickly fill critical jobs; makes it easier for students on F-1 visa to change their status to H-1B

By Arun Kumar

Biden administration announced a new rule Tuesday clarifying who can apply for an H-1B work visa coveted by Indian techies, to significantly enhance US companies’ ability to fill job vacancies in critical fields, strengthening American economy.

The new rule modernizes the H-1B program by streamlining the approvals process, increasing its flexibility to better allow employers to retain talented workers, and improving the integrity and oversight of the program, the Department of Homeland Security announced.

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The rule builds on previous efforts by the Administration to ensure the labor needs of American businesses are met, while reducing undue burdens on employers and adhering to all US worker protections under the law, it said.

“American businesses rely on the H-1B visa program for the recruitment of highly-skilled talent, benefitting communities across the country,” said Secretary of Homeland Security Alejandro N. Mayorkas. “These improvements to the program provide employers with greater flexibility to hire global talent, boost our economic competitiveness, and allow highly skilled workers to continue to advance American innovation.”

“The H-1B program was created by Congress in 1990, and there’s no question it needed to be modernized to support our nation’s growing economy,” said USCIS Director Ur M. Jaddou. “The changes made in today’s final rule will ensure that US employers can hire the highly skilled workers they need to grow and innovate while enhancing the integrity of the program.”

In recent years Indian techies have cornered about three fourths of 65,000 H-1Bs issued per year, with an additional 20,000 for applicants with advanced degrees,

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 final rule aims to provide greater flexibilities for employers and workers by modernizing the definition and criteria for specialty occupation positions as well as for nonprofit and governmental research organizations that are exempt from the annual statutory limit on H-1B visas, according to the announcement.

These changes will help US employers hire the employees they need to meet their business needs and remain competitive in the global marketplace, DHS stated.

The rule also extends certain flexibilities for students on an F-1 visa seeking to change their status to H-1B to avoid disruptions in lawful status and employment authorization for those F-1 students.

To improve program efficiency, the final rule will allow USCIS to more quickly process applications for most individuals who had previously been approved for an H1B visa. It will also allow H1B beneficiaries with a controlling interest in the petitioning organization to be eligible for H-1B status subject to reasonable conditions.

The rule strengthens program integrity by codifying USCIS’ authority to conduct inspections and impose penalties for failure to comply; requiring that the employer must establish that it has a bona fide position in a specialty occupation available for the worker as of the requested start date

It clarifies that the Labor Condition Application must support and properly correspond with the H-1B petition and requires that the petitioner have a legal presence and be subject to legal processes in court in the United States.

In order to implement this rule, a new edition of Form I-129, Petition for a Nonimmigrant Worker will be required for all petitions beginning Jan 17, 2025, which is the rule’s effective date. Because there cannot be a grace period for accepting prior form editions, USCIS will soon publish a preview version of the new Form I-129 edition on uscis.gov, the release stated.

“We applaud the Biden administration for finalizing the H-1B Modernization rule, which will make the H-1B visa program more efficient and predictable, while also enhancing the program’s integrity, among other important updates. Implementing this rule will strengthen the United States’ ability to attract and retain more highly educated individuals with skills critical to our country’s economic future,” said Todd Schulte, president of FWD.us, an immigrant advocacy organization with ties to big tech.

“The finalized rule addresses longstanding challenges within the H-1B visa program and introduces important updates. It allows USCIS to defer to prior decisions for the same employer and employee, reducing redundant reviews and delays. It simplifies eligibility for nonprofits and governmental research organizations to hire specialized workers, strengthening collaboration between industry, academia, and government. Additionally, the rule requires clear documentation to ensure H-1B roles are not speculative and grants DHS site visit authority to verify compliance.”