US News | Proposed Rule to Improve the H-1B Visa Program and In-Country Visa Renewal Pilot Program

Wednesday 22 November 2023

Updates

Proposed Improvements to the H-1B Visa Program:

On 20 October 2023, the Department of Homeland Security (DHS), through US Citizenship and Immigration Services (USCIS), published a notice of proposed rulemaking (NPRM) to improve the H-1B program. The proposal rule has several provisions that aim to safeguard the H-1B cap registration process from misuse, streamline eligibility requirements, and provide greater benefits and flexibilities for employers and employees.

One highlight of the proposed rule is to change how USCIS conducts the H-1B registration selection process for H-1B cap-subject petitions. Since implementing the lottery system, USCIS has seen a drastic increase in the number of registrations submitted, from 274,237 total registrations for the fiscal year (FY) 2021 cap to 780,884 total registrations for the FY 2024 cap. (For more information on registration and selection numbers for fiscal years 2021-2024 visit the USCIS H-1B Electronic Registration Process update). As there was a significantly higher number of multiple eligible registrations for beneficiaries with multiple eligible registrations this year, there has been much concern of fraud and how some sponsors may have tried to gain an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary. In response to the possibility of misuse and fraud, the proposed rule would change how USCIS conducts the selection process. As opposed to the current process that allows multiple registrations to be submitted on behalf of the same individual, under the proposed rule each individual who has a registration submitted on their behalf would be entered into the selection process once, regardless of the number of registrations submitted on their behalf. According to DHS, this should reduce or eliminate multiple registrations for the same beneficiary solely to increase chance of selection, and thus improve the chance of selection for other legitimate registrations.

Other provisions of the proposed rule include revising the definition of the H-1B specialty occupation, clarifying when employers must amend nonimmigrant petitions, extending F-1 cap-gap protection, and codifying the Fraud Detection and National Security site visit program. For more information about the proposal visit the DHS press release DHS Issues Proposed Rule to Modernize the H-1B Specialty Occupation Worker Program. Following publication of the NPRM in the Federal Register on 23 October 2023, it has been open for public comment for a 60-day period. The provisions will not take effect until they have been finalized and approved by the federal Office of Management and Budget. USCIS plans to finalize and implement the provisions in stages, so some may take effect before the registration period for the FY 2025 H-1B cap in early 2024.

In-Country Visa Renewal Pilot Program:

Additionally, on 17 October 2023 the US Department of State (DOS) sent a Federal Register notice titled, “Pilot Program to Resume Renewal of H-1B Nonimmigrant Visas in the United States for Certain Qualified Noncitizens” to the Office of Information and Regulatory Affairs regarding the highly anticipated implementation of an in-country visa renewal program. The pilot program will enable DOS to issue visa stamps to nonimmigrant visa holders in the US. Currently, all nonimmigrant visa holders are required to leave the country and to schedule and attend interview appointments at US consular or Embassy posts abroad in order to renew their US visas. Even when interview waivers apply, visa applicants must still be physically located abroad to renew their visas. The pilot program is expected to launch in early 2024 and will initially be limited to only 20,000 H-1B principal applicants. The program will also be limited to nationals of countries that are not subject to reciprocity fees, such as India. It will involve voluntary participation and have similar eligibility requirements to the current interview waiver program. According to the DOS, if this trial project is successful there are plans to expand the program to include additional visa categories. This would make visa renewals far more convenient and efficient and save applicants significant time and expense on travels abroad.

Background
The H-1B classification has an annual limit (cap) of 85,000 visas each fiscal year: Specifically, 65,000 beneficiaries are selected for an H-1B visa, 6,800 of which are reserved for citizens of Chile and Singapore as part of a specific Free Trade Agreement, and 20,000 beneficiaries who hold a master’s degree or higher degree from a US institution of higher education are selected (master’s cap). Generally, H-1B visas for beneficiaries who work for universities and nonprofit entities, nonprofit research organizations, and government organizations are exempt from the cap.

Under the current system, foreign workers must first secure a qualifying job offer in the US with a US employer that will sponsor them in the lottery. US employers must submit an electronic registration for each foreign worker who is subject to the cap whom they seek to employ as an H-1B worker during the registration period. The registration process requires basic information about the prospective petitioner (the sponsoring employer) and each foreign worker. The initial registration period is open for a minimum of 14 calendar days. Selections are made randomly in the lottery from all properly submitted electronic registrations. Only applicants with selected registrations are eligible for cap-subject H-1B visas. As such, applicants must be selected in the lottery before their sponsors may submit full H-1B petitions on their behalf.

If you would like assistance to plan for the 2024 registration period for the FY 2025 H-1B program, or if you would like advice on the eligibility requirements for alternate visa types, contact your Laura Devine Immigration attorney or enquiries@lauradevine.com.

Khensani Mathbula


US Team | Attorney


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