Changes to the H-1B Program are on the WayJan 12, 2024
The H-1B visa is a popular temporary program for employing foreign nationals in the United States. The program enables employers to petition for workers in “specialty occupations,” which requires a bachelor’s degree (or equivalent) in a specific specialty. STEM employers — Science, Technology, Engineering, or Mathematics — usually qualify.
Congress limits H-1B visa numbers to 65,000 annually, with 20,000 additional visas available to individuals who graduate with a master’s or Ph.D. degree from a U.S. post-secondary college or university.
The demand for H-1B visas has exceeded the annual limit for years. The demand intensified after U.S. Citizenship and Immigration Services (USCIS) started to require the electronic registration of H-1B applicants in 2021. The electronic registration replaced a more cumbersome “hardcopy” process but also disadvantaged smaller employers with fewer job openings. The USCIS also expressed concern about the possible abuse of the electronic petition registration system.
After the most recent H-1B 2024 “lottery,” which had a much lower than usual selection rate than in prior years, the need to modernize the process was evident. For the first time in the program’s history, the USCIS received more eligible multiple petitions — when multiple employers file a petition on behalf of an individual noncitizen — than single petitions.
If nothing else, the 66 percent increase in H-1B petitions from individual employers between FY 2022 and FY 2024 highlights the demand for talent in the U.S. economy.
Changing the rules
Last fall, the federal Department of Homeland Security (DHS) proposed changes to the H-1B visa rule that would significantly modify how U.S. Citizenship and Immigration Services (USCIS) conducts the H-1B lottery.
Instead of the current “employer-centric” petition registration process, USCIS would implement a “beneficiary-centric” process where multiple employers may submit a petition for the same noncitizen, but USCIS will only select an individual noncitizen once.
For some individuals seeking employment in the U.S., this system will provide more bargaining power among multiple employers. For some employers, however, the proposed new system could mean expending time and expense on submitting a petition on behalf of an individual noncitizen, only to have their job offer declined after the H-1B visa is approved.
If enacted as proposed, other than changing the selection process, the new rule will help prevent abuse and make other changes designed to make the program more efficient and fair.
The 60-day comment period ended on December 22, 2023, and the USCIS wants to change the system in time for the FY 2025 lottery. That seems overly ambitious. It means finalizing and publishing the rule sometime this spring. We’ll have to wait and see.
New H-1B pilot program
At the end of December 2023, the U.S. Department of State (State Department) announced a stateside visa renewal pilot program that will be open to 20,000 H-1B visa holders whose visas were previously approved by U.S. visa processing offices in Canada and India.
Eligible visa holders will be able to apply for renewal online beginning Jan. 29, 2024. The State Department plans to open approximately 4,000 application slots every week, dividing them equally between individuals whose prior visas were approved in Canada and India. Application slots will become available on Jan. 29, Feb. 5, Feb. 12, Feb. 19 and Feb. 26. According to the announcement, the average processing times for domestic visa renewal would be six to eight weeks, and officials aim to complete processing of all applications by May 1.
Though this program is limited in scope, the State Department is expected to expand the pilot to new visa categories and countries in the future.
In the meantime…
Employers who use the H-1B program are encouraged to familiarize themselves with these quickly developing changes to the program, and how they could impact their current and future noncitizen employees. As always, if you have any questions or concerns about the visa status of your noncitizen employees — or need assistance in any kind of immigration matter that is affecting your noncitizen employees — don’t hesitate to contact Orr & Reno for assistance.
About the author: Emily A. White