Explained: Proposed Tweaks To H-1B Process, What Will Change, What Won't

As the Joe Biden administration plans changes in the H-1B visa application system, availed by thousands of Indians to take up job opportunities in the US, there are concerns about what will change and what won't. NDTV breaks it down for you

What Is H-1B Visa?

It is a non-immigrant visa that allows companies in US to employ foreign workers in speciality occupations requiring theoretical or technical expertise. Usually, employers use the H-1B visa system to hire foreign nationals for a US job role for three to six years. H-1B visa holders who have started the Green Card process for permanent resident status in the US can usually renew work visas indefinitely.

How Do You Apply?

Every year, the US gives out 65,000 H-1B visas and 20,000 more for applicants who hold a Master's degree or higher from a US institution. Each applicant must register with the US Citizenship and Immigration Services website and go through a lottery to be selected for H-1B visa. If an applicant is selected, the employer can start the process by filing a petition on his/her behalf. Tech companies currently use this system to hire tens of thousands of employees annually.

Why The Change?

The US Department of Homeland Security said the proposed changes are aimed at streamlining eligibility requirements, improving efficiency, providing greater benefits and flexibilities to employers and workers, and strengthening integrity measures. Secretary of Homeland Security Alejandro N Mayorkas said the Biden-Harris administration's priority is to attract global talent, reduce undue burdens on employers, and prevent fraud and abuse in the immigration system.

Expert Explains

NDTV spoke to US-based author Soundarya Balasubramani on the proposed changes in the H-1B visa process. Ms Balasubramani had moved to the US as a Master's student and currently has O-1 Extraordinary Ability Visa (a temporary work visa) She now has her own company and her books serve as a guide to the maze of legal immigration Indians must pass through if they aspire to settle in the US.

Speaking about the proposed changes, Ms Balasubramani said an employee can no longer submit multiple applications, something that happens now. "This means everyone gets a fair one chance in the H-1B lottery. That's a major change. There is a good news for founders. So let's say you want to file an H-1B through your own company, they are going to loosen restrictions on what qualifies as an employer-employee relationship. This will let more founders use H-1B to build their companies in the US," she said.

The third proposed change, she said, was the modernisation of what qualifies as a cap-exempt organisation, meaning one that need not put employees through the lottery system. "They are modernising the term, so hopefully as an employee you will have more choices to work at where you don't have to go through the lottery," Ms Balasubramani said.

What Changes For Employers?

Ms Balasubramani said the major change for employers is that "you can't game the system" by trying to put in multiple applications for the same person. There is also a proposal, she said, to concretise the process of US authorities making site visits. "They can come and check that you are a legitimate employer and that you are not just setting up a sham company to hire employees on H-1B," she said. The authorities, Ms Balasubramani said, are also tightening the definition of what qualifies as a speciality occupation. "For example, you have a job, a role that only requires a generic degree, but not speciality training. Then you cannot use that job role to hire an employee on H-1B visa," she said.

When Will Changes Kick In?

Ms Balasubramani said all these changes are just proposals. "Nothing is final yet. It's in the early stages of being proposed." The proposed rules will made public for feedback later today. "One the public gives comments, the Department of Homeland Security will collect all inputs and publish a final rule, hopefully sometime in late 2024. Until that comes into effect, there is no change in status quo," she said.

What Is Not Changing?

Responding to a question on what's not changing, Ms Balasubramani said, "What is not changing is the fundamental cap on H-1B visas. There are 85,000 H-1B visas that are set aside and issued every year. And this hasn't changed in the last two decades. That is not going to change (this time either). But your chances in the lottery may increase because everyone gets a fair chance and there is no abuse."