The H-1B policy proposed by the Biden Administration includes several updates. Perhaps the biggest change is to the lottery process. Educational requirements to qualify for related roles are limited, similar to a 2020 Trump rule. Updates to the F-1 student visa, loosening requirements for entrepreneurs to qualify for an H-1B visa, petition amendments for change of location, and site visit requirements also see updates.

H-1B Lottery Updates

In the past, employers filed registrations for the lottery for each potential employee. Multiple, separate employers could submit the same person for the lottery. However, related entities could not submit the same individual multiple times. In the previous lottery, U.S. Citizenship and Immigration Services (USCIS) believed the related entity rule was abused and as such, some individuals had an unfair advantage.

To address this issue, the proposal flips the lottery process. Companies continue to file registrations for their potential employee. However, the individual is selected for eligibility to file an H-1B petition. The selected person chooses which role and related employer to accept, if they have multiple offers. Individuals must submit passport information and that information will be used to determine who is selected from the lottery process. Individuals who do not hold a valid passport are not eligible for lottery registration.

Educational Requirements and Related Roles

Updates are included to educational requirements and related roles to qualify as a specialty occupation with some sections taking text, verbatim, from a 2020 Trump rule. The 2020 rule was an effort to limit U.S. employment options for foreign-born individuals with scientific and engineering backgrounds. Companies were critical of the 2020 proposal, and it was overturned. Trump left office prior to updating the proposal.

In the Biden proposal, to be considered for an H-1B eligible role, individuals must hold specific education requirements that directly relate to that role. To qualify, a U.S. bachelor’s degree or higher, or an equivalent, in the specific area of employment is required in order to qualify for that role. As such, individuals with multiple or adjacent degrees or related experience may not be eligible to fill roles not directly related to their degree. However, the Immigration and Nationality Act (INA) does not specify that the degree must be directly related to the role. Per the INA, “The term ‘specialty occupation’ means an occupation that requires . . . attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”

In fact, more than 50% of U.S.-born individuals working in computer roles have degrees in areas other than computer science or computer engineering. As for temporary visa holders, 18% hold degrees in non-computer areas and are working in computer roles. In science roles, 48% of U.S.-born chemists and 15% of temporary visa holders hold degrees outside of chemistry. These results are from the National Foundation for American Policy analysis of the 2021 National Survey of College Graduates.

As a result, some individuals currently working in the U.S. may no longer be eligible to fill their current H-1B roles, leaving companies suddenly shorthanded amid a labor shortage. The juxtaposition of the percentage of U.S.-born individuals working in roles not related to their degree versus foreign-born visa holders in the same situation is clearly, at best, an inconsistency.

F-1 Students Transition to H-1B

F-1 students, some working in Occupational Training Program (OTP) roles, receive an extension of 6 months to transfer to an H-1B visa status. The proposed rule includes an automatic protection period, currently ending October 1, to April 1, in order to allow F-1 students to find H-1B employment, prior to having to leave the U.S. This “cap-gap” protection is meant to minimize employment authorization disruption, as many have experienced in recent years.

Entrepreneurs Under H-1B

Current USCIS employer-employee relationship rules limit opportunities for entrepreneurs to come to the U.S. under an H-1B visa. As such, these individuals either do not found a company, move elsewhere, or wait until they have permanent resident status, which for many individuals, can take up to a decade. 64% of U.S. billion-dollar companies are founded by immigrants or their children, per the National Foundation for American Policy. Therefore, the U.S. economy is limited by restricting foreign-born entrepreneurs.

Proposed provisions for individuals with controlling interest in a petitioning entity to be eligible for an H-1B visa are included in the Biden administration’s submission. Conditions state the beneficiary can have a role that directly relates to owning and directing the petitioner’s business, as long as the individual performs specialty occupation duties the majority of the time. For initial H-1B petitions where the beneficiary has a controlling ownership in the business the approval period is limited to up to 18 months.

Location Change Amendment Requirements

Amended H-1B petitions have been required since 2015 when employers received a new labor condition application from the Department of Labor. This requirement increased costs for many employers.

If an H-1B holder has a geographic area change that requires an updated labor condition application to be certified by USCIS, a new or amended petition is required. This must be submitted prior to the H-1B employee beginning work in the new location. If the new job location is within the originally intended employment area as listed on the labor condition application, no new or amended H-1B petition is required.

Site Visit Compliance

In the past, USCIS conducted site visits at H-1B visa employers’ locations. Attorneys contend that the authority to complete random site visits is suspect. The proposed rule specifies required compliance with USCIS site visits by all employers.

A notice of proposed rulemaking was published by U.S. Citizenship and Immigration Services (USCIS). The 60-day public comment period began on October 23, 2023. The proposed fees for H-1B have not yet been announced but are expected soon. How these updates are perceived may well be influenced by the related costs. Follow us on our website, LinkedIn, and Instagram for ongoing updates.

If you have questions about the H-1B visa, the proposed changes, or how to best prepare for these potential changes, contact us. Our team has years of expertise and success in managing through ongoing changes to U.S. immigration policy across all visa types, but particularly for H-1B visas. We work with companies of all sizes, supporting them through their particular situations to ensure they get the right advice to maximize their odds of a successful outcome.

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