How DHS May Modernize the H1B Visa Program

Last week, the Department of Homeland Security (DHS) and US Citizenship and Immigration Services (USCIS) released a Notice of Proposed Rulemaking (NPRM) that could at least partially overhaul the current H1B visa program. Now that the NPRM is published, there will be a 60-day public comment period, after which some or all of the proposed measures could eventually be implemented.

Proposed H1B Visa Program Changes

According to the proposal, the following four measures are being considered to help improve the H1B visa program:

Streamlined Eligibility

The criteria for specialty occupations could be revised to reduce confusion between the public and adjudicators. For instance, although there would still need to be a direct correlation between a specific degree field and the duties of an H1B employment position, USCIS may clarify that a range of different degrees may be allowed for that position.

Improved Program Efficiency

This could be accomplished by codifying that adjudicators can (and generally should) defer to a previous determination when no underlying facts have changed at the time of the new filing.

Increased Benefits and Flexibilities for H1B Employers and Workers

It is being proposed that exemptions to the H1B cap be expanded for qualifying nonprofit and government research organizations, as well as beneficiaries not directly employed by them. DHS also proposes extending flexibilities to F1 international students when they are seeking to change to H1B status, as well as new H1B eligibility requirements for entrepreneurs.

Increased Program Integrity

DHS proposes to reduce H1B fraud during the registration process by prohibiting related entities from submitting multiple registrations for the same beneficiary. USCIS would also be allowed to conduct site visits, and revoke or deny petitions if site visits are not allowed.

According to DHS Secretary Alejandro N. Mayorkas, “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. DHS continues to develop and implement regulations that increase efficiency and improve processes for employers and workers navigating the immigration system.”

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