DHS proposes changes to H-1B work visas

The Biden administration Monday rolled out a series of proposals to change how work visas are granted and what rights they convey to foreign nationals.

The Department of Homeland Security (DHS) published the changes “to modernize and improve the efficiency of the H-1B program, add benefits and flexibilities, and improve integrity measures” in the Federal Register.

But the proposals are hit-and-miss for many advocates and researchers.

“The regulation is a very modest attempt to make the H-1B program work a little bit better than it does now,” said David Bier, associate director of immigration studies at the Cato Institute.

In balance, the proposal liberalizes certain aspects of the H-1B, while tightening regulations that lawyers worry could make the application process more difficult.

The H-1B is directed toward specialty occupations: engineers, doctors and journalists, for instance, who are foreign nationals with U.S.-based jobs.

The visa is often granted to graduates of U.S. universities, and for many it serves as a bridge between college or graduate school in the United States and permanent residency or naturalization.

But for many others, the H-1B is a trap.

The H-1B in principle is granted for three years and renewable for another three, after which beneficiaries can either move to another status, such as a green card, or leave the country.

Green cards, however, are subject to a per-country cap, where no one country can receive more than 7 percent of the annual allocation. That leaves nationals of countries such as India, which is a heavy user of H-1Bs, stuck in decades-long backlogs, renewing their H-1Bs yearly after the two three-year periods end.

“The fact going forward is that there aren’t enough green cards, that the cap is going to be filled very quickly for green cards this year, and it’s not going to be just Indians anymore. Everybody’s going to be starting to face increasing wait times,” said Bier.

Because current regulations make it risky and difficult to switch employers, workers on green card backlogs are at heightened risk for labor abuses.

The new regulation does not address that issue, said Bier, and it adds language that could make it more difficult to obtain the visa in the first place.

Immigration lawyer Cyrus Mehta wrote that the new regulation’s tightening of rules to match college and graduate school degrees with occupations “will make the H-1B program more restrictive and will negate all the good features.”

“The proposed regulation seeking to amend the definition of ‘specialty occupation’ is of great concern as it would incentivize [U.S. Citizenship and Immigration Services] examiners to issue requests for evidence, which in turn would be burdensome on employers,” wrote Mehta.

The administration’s new proposal would adopt language similar to a Trump administration proposal saying an applicant’s job needs to be “directly related” to their studies, and to the needs of any given job.

Because people often study one thing and end up working in a different field, immigration law experts are worried this measure could create unnecessary red tape.

But the administration’s proposal also makes it less risky to apply for an H-1B.

The visa is granted to a set number of people, regardless of how many apply; the winners are chosen at random from the pool of eligible applicants.

That’s made many would-be applicants reconsider the expenses and effort of an application, while other applicants enter the system on repeated occasions sponsored by different companies, getting more tickets for the lottery.

Under the new system, each individual applicant would count once for the lottery system, regardless of how many applications they filed.

The new proposal would also codify a way for entrepreneurs to self-sponsor, whereas only U.S.-based companies can sponsor applicants now.

“That whole thing was thrown out by a court, so the rule should be right now that any entrepreneur who wants to sponsor themselves for an H-1B should be able to do so, but in practice, I’ve been told that that is not what is happening. They are still making it difficult to do that,” said Bier.

The proposal would also extend the time recent graduates of U.S. universities can work before requiring an H-1B to continue working, a process known as Optional Practical Training, making it easier to time applications to avoid interruptions in work eligibility.

And it would require U.S. Citizenship and Immigration Services, the agency that grants work permits, to defer to its prior decisions, meaning that renewals for people with unchanged underlying circumstances would be virtually guaranteed.

In parallel, the State Department is mulling a proposal to allow H-1B applicants to receive their visa stamps without leaving the United States. Currently, applicants must leave the country to get stamps at a U.S. consulate abroad.