H-1B Visa Program Overhaul Finalized by Biden Administration (2)

US Citizenship and Immigration Services finalized sweeping new H-1B regulations overhauling eligibility standards for the primary visa program used by skilled foreign workers in the US.

The regulations issued Tuesday codify a policy of “prior deference” in adjudicating extensions of previously approved H-1B specialty occupation visas, which are most heavily used for hiring by tech and information technology firms. The first Trump administration dropped that policy, significantly slowing visa extensions.

Release of the final regulations comes more than a year after the agency unveiled proposed rules that drew criticism from the immigration bar over provisions tightening eligibility standards even as it garnered praise for revamping the annual lottery for the visas and adding new flexibility for the visas. Since then, President-elect Donald Trump’s forthcoming return to the White House has stirred fears over new restrictions on hiring of international workers.

“American businesses rely on the H-1B visa program for the recruitment of highly-skilled talent, benefitting communities across the country,” said Homeland Security Security Alejandro Mayorkas in a statement. “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.”

H-1B visas have a statutory cap of 85,000 new visas each year—including 20,000 slots reserved for workers with advanced degrees. Demand from employers far exceeds the number available under that cap, necessitating an annual visa lottery. Earlier this year, USCIS finalized a shakeup of the annual H-1B visa lottery that was part of last year’s proposed rule, leading to a marked drop in duplicate registrations by employers.

Even though the odds of winning the lottery remain low, H-1B visas are the most straightforward pathway for international graduates or foreign professionals with at least a bachelor’s degree to pursue a career in the US.

Specialty Occupation

The regulations revise the definition of “specialty occupation” and mandate that required degree fields for a role be directly related to the job duties. Immigration attorneys raised concerns that a draft proposal would restrict employers’ ability to hire talented individuals by tying a field of study directly to a position.

But changes in the final rule should resolve those qualms, said Cecilia Esterline, a senior immigration policy analyst at the Niskanen Center, a think tank that advocates for bipartisan immigration reform. That’s in part because the final rule clarifies that start-ups and employers hiring in emerging fields only need to show a logical connection between a degree and job duties, not an “exact correspondence.”

Shev Dalal-Dheini, government relations director at the American Immigration Lawyers Association, said the group was still analyzing the final rule although it appeared to address some of AILA’s concerns.

“It will be a question of how it plays out in practice, how it’s interpreted and applied by adjudicators,” she said.

Added Flexibility

The rules also add new flexibility for nonprofit and government research organizations to qualify for cap-exempt H-1B visas. Instead of requiring that research be their primary mission, the regulations require that research be a “fundamental activity” of those organizations in order to qualify. That change could boost hiring efforts by employers that would otherwise face tough odds in the annual visa lottery.

The regulations offer further relief to international students hired on an H-1B visa by automatically extending the duration of their student visa to avoid a lapse in lawful status in the US. And they clarify that entrepreneurs with a controlling interest in a company would be eligible for H-1B status under certain conditions.

Among measures added to address the integrity of the H-1B program, the regulations codify the authority of USCIS officials to conduct worksite visits to ensure compliance with visa rules. An employer’s refusal to cooperate with a site visit could lead to the denial or revocation of a visa petition.

The measures in the rule “will go a long way in improving the H-1B visa program’s efficiency and integrity while serving the needs of the U.S. workforce and economy,” said Todd Schulte, president of FWD.us, an immigration reform advocacy group.