Health Care: USCIS plans big changes to H-1B visa; many Indians likely to be impacted

In what could result in far reaching changes for thousands of Indians working in the US on work permits; the US department of homeland security (DHS), through US Citizenship and Immigration Services (USCIS), has published a notice of proposed rulemaking (NPRM) on Friday, that would modernise the H-1B specialty occupation worker programme by “streamlining eligibility requirements, improving programme efficiency, providing greater benefits and flexibilities for employers and workers, and strengthening integrity measures”. The H-1B programme helps US employers hire the employees they need to meet their business needs and remain competitive in the global marketplace, while adhering to all US worker protections under the law, according to a release from the DHS.

The proposed rule would change how USCIS conducts the H-1B registration selection process to reduce the possibility of misuse and fraud. Under the current process, the more registrations that are submitted on behalf of an individual, the higher chance that individual will be selected in a lottery. Under the new proposal, each unique individual who has a registration submitted on their behalf would be entered into the selection process once, regardless of the number of registrations submitted on their behalf. This would improve the chances that a legitimate registration would be selected by significantly reducing or eliminating the advantage of submitting multiple registrations for the same beneficiary solely to increase the chances of selection. Further, it could also give beneficiaries more choice between legitimate job offers because each registrant who submitted a registration for a selected beneficiary would have the ability to file an H-1B petition on behalf of the beneficiary.
The USCIS has definitely discovered all the ways that the H-1B lottery system has been gamed since making the switch to the electronic registration process, Emily Neumann, attorney at Houston-based business immigration law firm Reddy & Neumann, told the Times of India. She, however, feels that it is encouraging that the US department of state is proposing a number of positive changes. “Allowing each registrant only one entry while still allowing for multiple legitimate job offers serves to put everyone on an even playing field,” she said. Extending cap gap relief will also help ensure continued employment authorisation for those F-1 students with expiring optional practical training (OPT) waiting for petition approval, feels Neumann. “I am also pleased to see that H-1B workers can potentially have an ownership interest in the petitioning employer. Entrepreneurship is becoming more common among international students and those that are successful should be able to continue those endeavours in H-1B status,” she added.
Companies involved in third-party placement, commonly referred to as consulting or staffing companies, are likely to face more difficulties in obtaining H-1B work authorisation as the agency looks to bring back many of the provisions of the Neufield memo that had been struck down. “Contracts, work orders, vendor letters, and end-client letters would again be required to be submitted,” Neumann cautions. The site visit programme, which seeks to root out fraud, would change from voluntary to mandatory for both employers and H-1B workers. “The programme seeks to root out fraud in the visa programme, but often casts too wide a net and unnecessarily hassles legitimate employment. There are insufficient safeguards in place to protect petitioners and beneficiaries from improper revocation,” Neumann said.
DHS continues to develop and implement regulations that increase efficiency and improve processes for employers and workers navigating the immigration system, secretary of homeland security Alejandro N. Mayorkas, has said in the official release.
Overall, the proposed changes to the H-1B visa system could have both positive and negative impact on Indian nationals. “Limiting each registrant to one entry in the H-1B lottery system reduces the advantage of those who previously submitted multiple applications, making it fairer for all applicants, including Indians seeking H-1B visas. Extending cap gap relief is particularly beneficial for Indian students in the United States, as it provides them with more time to secure H-1B status without the risk of losing employment opportunities,” says Neumann. However, some proposed changes, such as increased documentation requirements for third-party placement companies and mandatory site visits will create roadblocks for Indian applicants, she adds. “These will create challenges and additional scrutiny for Indian nationals seeking H-1B visas. These changes aim to prevent fraud but could also impact legitimate employment. So, while there are benefits, Indian nationals may need to navigate increased scrutiny and requirements in certain cases,” Neumann said.
Among additional provisions is streamlining of eligibility requirements for the H-1B visa with criteria for specialty occupation positions being revised to reduce confusion between the public and adjudicators and to clarify that a position may allow a range of degrees, although there must be a direct relationship between the required degree field(s) and the duties of the position. Other proposed changes include improving programme efficiency and codifying that that adjudicators generally should defer to a prior determination when no underlying facts have changed at time of a new filing. Certain exemptions to the H-1B cap would be expanded for certain non-profit entities or governmental research organisations as well as beneficiaries who are not directly employed by a qualifying organisation. The 60-day public comment period for the new rules starts following publication of the NPRM in the federal register.
In another development, USCIS is issuing policy guidance to clarify that a sole proprietorship may not file an L-1 work visa petition on behalf of its owner because the sole proprietorship does not exist as a distinct legal entity separate and apart from the owner. The L-1 non-immigrant visa classification enables a US employer that is part of a qualifying organisation to temporarily transfer employees from one of its related foreign offices to locations in the United States. “USCIS is merely clarifying existing guidance that a sole-proprietorship may not file a L-1 petition on behalf of its owner. In the case of a sole-proprietorship, the owner and the beneficiary are one and the same and as such this constitutes a self-petition which is not allowed. This is different from a self-incorporated entity (even a single member LLC) as there is a clear legal separation from the legal entity that is filing the petition and its owner,” says Manjunath Gokare, founder and managing partner of Gokare Law Firm, a business immigration law firm based in Alpharetta, Georgia.