The Biden Administration to Overhaul Current H-1B Visa Program, Streamline the Selection Process

Professional workers seeking permits to work in the U.S. legally will face changes in the H-1B visa program starting next year.

The program is designed to grant legal entry to thousands of skilled workers every year in the fields of science, math, engineering and the tech industry.

Last week, the Department of Homeland Security (DHS) proposed to amend its regulations governing the H-1B program. The idea, the DHS said, according to an official document posted at the Federal Registry, is "to modernize and improve the efficiency" of the process to allow the entrance of specialty occupation workers.

Some of the changes under consideration by the Biden administration are meant to revamp the H-1B lottery to avoid fraud in the program. As of today, the system allows companies to register multiple applications on behalf of individual workers, boosting the odds in the lottery.

The priority, Alejandro Mayorkas, secretary of Homeland Security said, "is to attract global talent, reduce undue burdens on employers, and prevent fraud and abuse."

Under the new system, instead, each person applying for a visa would count once, giving them the same chance of being selected via the lottery.

Another relevant change proposed by the U.S. Citizenship and Immigration Services (USCIS) is that companies based in the U.S. will not be the only entities allowed to sponsor applicants. The proposal will give entrepreneurs a chance to self-sponsor themselves. Indeed, visa petitioners will be able to qualify as employers as long as they prove they own at least a stake in a business.

The H-1B visa program is designed so companies and organizations hire foreigners experienced in fields like technology or engineering, among others.

Visas are capped at 85,000 per year (including some 20,000 for advanced degree holders from U.S. universities) and the lottery takes into account almost 760,000 applications.

Other significant changes, scheduled to be implemented in fiscal year 2025:

• Prior deference is back: visa supervisors may approve an application if the applicant has received approval to work for the same activity.
• Revise the definition of specialty occupation to clarify that if a position "normally" requires a certain degree, it does not mean the degree is "always" required.
• Nonprofit research organizations and government agencies will be covered in the new H-1B Cap exemption mechanism if they demonstrate that the positions they require are to fulfill "fundamental activities."
• The USCIS will also extend cap-gap provision for students with F-1 visas when they seek to change their status to H-1B.
• Recognize changes in the workplace due to Covid so job offers include telework, remote work, or off-site work within the U.S.