New H-1B visa rules: Too little, too late?

Last month, the outgoing Biden administration, through the US Department of Homeland Security (USDHS), issued a new set of rules impacting the adjudication of H-1B visa petitions in the United States.

H-1B visas, for the readers’ benefit, are nonimmigrant visas issued to foreigners who intend to work in “specialty occupations,” statutorily defined as jobs that require highly specialized knowledge and a baccalaureate degree or higher in the specific specialty, or its equivalent.

An H-1B visa is typically issued with an initial three-year validity period and can be renewed for another three years, with future extensions possible depending on the foreign worker’s circumstances.

Among the most consequential changes is the expansion or liberalization, so to speak, of the definition criteria for a specialty occupation.

Whereas before most US Citizenship and Immigration Services (USCIS) adjudicators considered as H-1B caliber occupations only those types of jobs that were specifically tied to a certain bachelor’s degree field such as Teachers (Education), Accountants (Accounting), Engineers (Engineering), Physical Therapists (Physical Therapy) and the like, the new rules, at least in theory, specify that a position can qualify for H-1B designation even if tied to a range of qualifying bachelor’s degree fields as long as the educational fields are directly related to the duties of the position.

The rules also clarify that “normally” does not mean “always” within the context of examining a job’s bachelor’s degree requirement in a specific field of study.

Thus, these newly expanded criteria can provide a positive adjudicatory impact on H-1B petitions involving jobs that are not specifically tied to a singular baccalaureate degree field, such as computer jobs, marketing occupations and management positions, among others.

Other notable changes include expanding the lottery-exempt criteria pertaining to nonprofit and governmental research organizations, providing status or work permit flexibilities for F-1 students undergoing H-1B sponsorships, mandating positive renewal outcomes of previously approved H-1B petitions, and permitting foreigners with a controlling interest in the petitioning organization to avail of H-1B status under certain conditions.

Ironically, while this is supposed to be one of the most welcome developments as far as improving or modernizing the H-1B adjudication process is concerned, it begs the question: Is it too little, too late now for the rules to be changed?

With a new administration taking over the helm of the federal government in the next few weeks, one that is avowedly keen on limiting both legal and illegal immigration, no one should be surprised if a new USDHS or USCIS czar tries to attenuate the liberal impact of the new rules by issuing a new set of countervailing H-1B directives or by releasing official internal memos that aim to stymie a more flexible adjudication policy.

Considering the fiercely escalating war of words between the incoming President’s billionaire tech advisers and his loyal MAGA followers (who are notoriously anti-H-1B visa due to its supposed impact on American workers’ job security), there will certainly be added pressure on the incoming President (and his immigration advisers) to tackle the issue as soon as possible.

To what direction the H-1B’s wind will ultimately blow is anyone’s guess at the moment.

One can only hope that this latest H-1B reform is neither too little nor too late.