The Biden administration announced it would be overhauling the rules of the H-1B visa program, used to attract international talent to work in the United States, but frequently criticized for being too complicated and susceptible to abuse.
In a new rule announced this week, the administration is moving to streamline the complicated process of applying for the highly sought-after visas and give immigrants and businesses more certainty regarding their applications.
The H-1B visa program is one of the most competitive in the U.S. immigration system, with only 85,000 available to a pool of more than 400,000 applicants. DHS awards 65,000 H-1Bs a year and reserves an additional 20,000 for applicants with advanced degrees. Some types of organizations are exempt from the caps but still run into roadblocks getting applications processed.
The Department of Homeland Security said the changes will make it easier for employers to fill their openings and keep specialized workers longer.
“American businesses rely on the H-1B visa program for the recruitment of highly-skilled talent, benefitting communities across the country. These improvements to the program provide employers with greater flexibility to hire global talent, boost our economic competitiveness, and allow highly skilled workers to continue to advance American innovation,” DHS Secretary Alejandro Mayorkas said in a statement.
H-1B visas allow U.S. businesses to employ foreign workers for specialized occupations that require advanced skills or knowledge. The visas are frequently used in areas like advanced technology and the education system, where there is a limited pool of Americans with the necessary specialized skill sets. Amazon, Google and Tesla are among the program’s biggest beneficiaries, and the tech industry has advocated for loosening restrictions on high-skill immigration for years.
The new rules change the definition of specialty occupation positions, which DHS said gives applicants and businesses more flexibility. The rules will also allow U.S. Citizenship and Immigration Services to process applications faster, which is expected to help clear bottlenecks and give current visa-holders more certainty when it comes time for them to seek a renewal.
Other changes include lower fees, eliminating the need for applicants with existing visas to be interviewed by immigration officials, and simplifying the forms required by the federal government.
“It provides a lot more certainty for businesses and universities. There’s not this sort of legal limbo that people are in. It reduces anxiety for the recipients,” said Erin Corcoran, a professor at Notre Dame’s Keough School of Global Affairs. “There’s the issue in immigration, obviously, of who can come and who can’t, but another way that immigration can be really challenging is just the bureaucratic backlogs and then the wait times.”
Rule changes are also taking aim at areas critics say are prone to abuse by giving USCIS authority to conduct inspections and impose penalties on employers that do not follow the rules of the highly competitive system. One of the issues with the program is the potential for large organizations to flood the application system and lower the chances for individual applicants, which is also being addressed in the overhaul.
The new rules will go into effect in the final days of President Joe Biden’s term on Jan. 17, with President-elect Donald Trump set to take office on Jan. 20.
It is unclear whether Trump will retain the rules put in place by the Biden administration as he prepares to enact a wide range of immigration restrictions. Trump would need an act of Congress to change the cap of allotted visas but could reduce their numbers in other ways.
During his first term, the Trump administration enacted restrictions on H-1B visas in a series of moves that led to an increase in denial rates. Among those was raising the wage requirements for applicants beyond what Americans working in those sectors would make and narrowing the definition of roles that would qualify for the visa, both of which were struck down in court.
“Even though I don’t think he’s going to revoke the program, what we have seen with him and people in his administration is this idea of, ‘We’ll reward people who we consider our friends and punish people who we consider our enemies,’ ” Corcoran said. “Because the issuance of visas is discretionary, you could also see that playing out in discretionary ways. You’re not going to change the cap, but denial rates might go up, wait times might go up. There are ways to create pain that don’t actually affect the visa numbers.”
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