DHS overhauls H-1B visa program

The Biden administration announced a new rule Tuesday clarifying who can apply for an H-1B work visa, a key program to attract international talent that’s been criticized as too complicated and susceptible to abuse.

The new rule expands the definitions of specialty occupation positions and spells out the requirements for nonprofit and governmental research organizations to sponsor H-1B visas.

“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 United States Citizenship and Immigration Services (USCIS) Director Ur Jaddou. “The changes made in today’s final rule will ensure that U.S. employers can hire the highly skilled workers they need to grow and innovate while enhancing the integrity of the program.”

The changes follow years of lobbying for a more streamlined H-1B, the workhorse of labor-related visas.

Earlier this month, Democratic Sens. Catherine Cortez Masto (Nev.), Alex Padilla (Calif.) and Ben Ray Luján (N.M.) petitioned the Biden administration to address a series of gaps in the immigration system in preparation for the incoming Trump administration’s announced crackdown on immigrants.

Among their requests was codification of the H-1B’s cap exemptions for research jobs to allow nonprofits and academia to sponsor the visas year-round.

The Department of Homeland Security (DHS) through USCIS is legally limited to awarding 65,000 H-1Bs per year, with an additional 20,000 for applicants with advanced degrees, but many nonprofits are exempt from that cap.

H-1B petitions subject to the cap regularly exceed the number of legally available visas, which are issued yearly at the start of the fiscal year. Applicants are chosen by a lottery system for review, meaning eligible applicants are often denied due to chance.

Cap exempt organizations can petition for H-1Bs year-round, and they are not subject to a statutory limit.

Under the new rule, nonprofit and governmental research organizations will be defined as those whose “fundamental activity” is research, rather than the previous “primarily engaged” or “primary mission” definitions, which led to confusion regarding which organizations were exempt from the cap and which were not.

And foreign nationals transitioning from a student visa to an H-1B will be able to extend their post-graduation work permit to a year after they’ve filed their H-1B petition in order to prevent gaps in employment.

“American businesses rely on the H-1B visa program for the recruitment of highly-skilled talent, benefitting communities across the country,” said Homeland Security Secretary Alejandro 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 rule will also streamline the application process for people who previously held H-1B visas and allow some people with controlling interest in petitioning organizations to themselves apply for the visa.

“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.”

Under the new rule, USCIS will receive expanded authority to conduct site visits to ensure proper implementation of the visa.

The H-1B program has previously come under criticism for being susceptible to abuse in large part by organizations that flood the application system, lowering the chances of applicants subject to the cap lottery.

The new rule seeks to counter that phenomenon in part by tightening the rules for H-1B recipients to provide their services to third-parties, imposing H-1B eligibility requirements on the third-party beneficiaries rather than on applicant organizations.

The final rule, initially proposed in October, will take effect 30 days after its publication in the Federal Register.