US proposes major changes in H-1B Visa: Here's how it will impact professionals, students

US immigration agencies have recently unveiled a series of proposed changes to the H-1B visa program, which could have significant implications for Indian professionals working in the US. The changes, aimed at modernizing the program and combating fraud, include amendments to the selection process, redefining eligibility criteria, and providing greater opportunities for startup founders, a TOI report by Lubna Kably stated.

At the end of fiscal year 2019, there were approximately 580,000 H-1B visa holders in the US, with a significant proportion being Indian nationals. The proposed changes, therefore, have far-reaching consequences for American employers, current visa holders, and those aspiring to obtain this work visa.

How proposed H-1B visa changes will affect professionals:

To address concerns regarding the lottery-selection process, the proposed rules suggest that each individual beneficiary should be entered into the selection process only once, regardless of the number of registrations submitted on their behalf. Currently, individuals with multiple registrations have a higher chance of being selected in the lottery. This change aims to curb gaming of the system, where multiple applications are filed on behalf of the same individual to increase their odds of selection, without a genuine job offer.

Greg Siskind, co-founder of Siskind Susser, highlighted the widespread abuse of the H-1B lottery in recent years. Unscrupulous employers, in collaboration with middlemen, have been filing multiple applications on behalf of the same individual, resulting in unfair advantages. The proposed changes aim to address this issue and prioritize the need to prevent misuse of the system.

The proposed rules will be published in the Federal Register on Monday, and a 60-day window will be available for public comments. Finalization and implementation of the changes may take several months. However, experts suggest that certain provisions, such as curbing misuse, could be implemented ahead of the next H-1B cap registration season in 2024.

In addition to changes in the selection process, the definition of a "specialty occupation" for H-1B eligibility is also set to undergo revisions. Cyrus D Mehta, a New York-based immigration attorney, explained that a job position will no longer be considered a specialty occupation if a general degree, such as business administration or liberal arts, without further specialization, suffices for the role. This means that applications for positions like marketing managers without specialized degrees may not be approved.

Immigration experts anticipate an increase in requests for additional evidence during the application process, which could potentially lead to rejections. The proposed changes also take into account the requirements of clients when determining whether a job position qualifies as a specialty occupation. This could have implications for Indian professionals working in the tech sector, who often work at client sites.

Another significant change is the proposed amendment in the definition of a US employer, making it easier for foreign nationals to be sponsored for an H-1B visa by a company they own. This change aims to address the issue of entrepreneurs entering the US on an H-1B visa, spending years working for an employer before being able to start their own ventures. This will provide greater opportunities for foreign nationals to pursue their entrepreneurial dreams.

How H-1B visa changes will affect International students:
International students studying in the United States on an F-1 or study visa, who wish to transition to a non-immigrant work visa or H-1B, might benefit from the proposed H-1B modernisation rules. These rules, which were released on Friday night, offer certain flexibilities.

A New York-based immigration attorney Cyrus D Mehta told TOI that the proposed rule includes an extended cap-gap protection period. The term "cap-gap" refers to the time period between the expiration of an international student's F-1 status and the start of their H-1B status. Under the proposed rule, this period would be extended from September 30 to April 1 of the following calendar year. In other words, students will have up to an additional six months of status and employment authorization.

For international students who have completed their qualifications and are eligible for optional practical training (OPT), the proposed rule provides an OPT duration of one year. However, students in the STEM (science, technology, engineering, and mathematics) field of study will receive an extended duration of two years.

Many individuals pursuing OPT are sponsored for the H-1B work visa by the organization where they are undergoing training. Currently, if their H-1B application is filed on time, they can continue working beyond the expiration date on their OPT employment authorization document while awaiting the start date (October 1) of an approved or pending H-1B application. However, if the application is not processed by October 1, the student must stop working from that date onwards.