Biden’s parting gift: H-1B Visa rules relaxed; Indian tech professionals may benefit

It will be easier for US companies to hire foreign workers with special skills, facilitate smooth transition from F-1 student visas to H-1B visas

Washington: The outgoing Biden administration has relaxed rules for H-1B visas that will make it easier for American companies to hire foreign workers with special skills and facilitate a smoother transition from F-1 student visas to H-1B visas, a move that is likely to benefit thousands of Indian tech professionals.

The most sought-after H-1B visa is a non-immigrant visa that allows US companies to employ foreign workers in speciality occupations that require theoretical or technical expertise. Technology companies depend on it to hire tens of thousands of employees each year from countries like India and China. The rule, announced by the Department of Homeland Security (DHS) on Tuesday, aims to provide greater flexibility to employers and workers by modernising the definition and criteria for special positions and nonprofit and governmental research organisations that are exempt from the annual statutory limit on H-1B visas.

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The changes will help US employers hire as per their business needs and remain competitive in the global marketplace, an official release said. President-elect Donald Trump will take charge as the next president of the US after his swearing-in ceremony on January 20. According to the DHS, the rule also extends certain flexibilities for students on F-1 visas seeking to change their status to H-1B to avoid disruptions in lawful status and employment authorisation for students holding F-1 visas. It also will allow US Citizenship and Immigration Services (USCIS) to process applications more quickly for most individuals who had previously been approved for an H1-B visa. It will also allow H1-B visa holders with a controlling interest in the petitioning organisation to be eligible for H-1B status subject to reasonable conditions.

The latest move by the outgoing Biden administration builds on its previous efforts to ensure that the labour needs of American businesses are met to reduce undue burden on employers while adhering to all US worker protections under the law. “American businesses rely on the H-1B visa programme for the recruitment of highly-skilled talent, benefiting communities across the country,” said Secretary of Homeland Security Alejandro N. Mayorkas.

“These improvements to the programme provide employers with greater flexibility to hire global talent, boost our economic competitiveness, and allow highly skilled workers to continue to advance American innovation,” he said.  “The H-1B programme was created by Congress in 1990, and there’s no question it needed to be modernised to support our nation’s growing economy,” said USCIS Director Ur M. Jaddou.

The changes made in the final rule will ensure that US employers can hire highly skilled workers they need to grow and innovate while enhancing the integrity of the programme, he said. The DHS said the rule also strengthens the programme’s integrity by codifying USCIS’ authority to conduct inspections and impose penalties for failure to comply; requiring that the employer must establish that it has a bona fide position in a speciality occupation available for the worker as of the requested start date.

It clarifies that the Labour Condition Application must support and properly correspond with the H-1B petition; and requires that the petitioner have a legal presence and be subject to legal processes in the courts of the United States.

In order to implement the rule, a new edition of Form I-129, Petition for a Nonimmigrant Worker, will be required for all petitions beginning January 17, 2025, which is the rule’s effective date. The DHS through USCIS is legally limited to awarding 65,000 H-1Bs per year, with an additional 20,000 for applicants with advanced degrees, but many nonprofits are exempt from that cap. H-1B petitions subject to the cap regularly exceed the number of legally available visas, which are issued annually at the start of the fiscal year. Applicants are chosen by a lottery system for review, meaning eligible applicants are often denied due to chance.

Cap-exempt organisations can petition for H-1Bs year-round, and they are not subject to a statutory limit, the Hill reported. Under the new rule, nonprofit and governmental research organisations will be defined as those whose “fundamental activity” is research, rather than the previous “primarily engaged” or “primary mission” definitions, which led to confusion regarding which organisations were exempt from the cap and which were not, the report added. The H-1B programme has previously come under criticism for being susceptible to abuse in large part by organisations that flood the application system, lowering the chances of applicants subject to the cap lottery.