USCIS Delays H-1B Modernization Plan: Impact on Employers and Students

The United States Citizenship and Immigration Services (USCIS) has announced a delay in the publication of the ‘final rule’ for the second phase of the H-1B program modernization plan. Initially scheduled for release earlier, the final rule is now expected in December 2024.

This phase is anticipated to bring significant changes, which has raised concerns among U.S. employers who sponsor H-1B workers.

The Role of Election Outcomes in Immigration Policy

Immigration experts suggest that the upcoming election results will have a considerable impact on immigration policies, including those related to work visas. The changes proposed in the draft rules released last October are viewed as particularly challenging for employers.

Also Read: Latest Updates on US Visa Programs, Including L1, H1-B, E2, and More

Key Changes in the Second Phase

The second phase of the H-1B modernization plan aims to:

1. Revise the Definition of an H-1B Specialty Occupation: This would include more specific criteria for what constitutes a specialty occupation.
2. Broaden Site Visit Programs: Authorities will conduct more comprehensive site visits to ensure compliance.
3. Enhance Cap-Gap Protection: This will provide better protection for international students transitioning from F-1 visas to H-1B status.

The First Phase: A Beneficiary-Centric Lottery Process

The first phase of the modernization rule, already implemented, shifted the lottery selection process to be beneficiary-centric. This means that each beneficiary (employee sponsored for an H-1B visa) is entered into the lottery only once.

Understanding the H-1B Visa Program

The H-1B visa program allows U.S. employers to hire foreign workers in specialty occupations. These occupations require highly specialized knowledge and at least a bachelor’s degree or its equivalent in a specific field.

Draft Rules and Employer Concerns

The draft rules from October proposed that job positions might accept a range of degrees, provided there is a direct relationship between the degree fields and job duties.

Immigration attorneys expressed mixed feelings about this, as employers would need to prove the relevance of each beneficiary’s degree to the job. This could lead to increased scrutiny from USCIS and potential rejections of H-1B applications.

Another challenge is the requirement that, for H-1B workers deputed to client sites, the client’s requirements would determine if the job qualifies as a specialty occupation.

Cap-Gap Protection for International Students

The second modernization phase is expected to offer enhanced cap-gap protection. International students on F-1 visas, upon completing their studies, can engage in Optional Practical Training (OPT) for one year.

STEM (science, technology, engineering, and mathematics) students get an additional two-year extension. Many of these students are sponsored for H-1B visas by their employers.

Currently, if an H-1B application is timely filed, students can continue working beyond their OPT expiration while awaiting their H-1B start date (October 1). However, if the application is not processed by then, they must stop working. The draft proposal aims to extend this cap-gap period, providing more stability for international students.

The Impact on OPT Programs

According to the Open Doors Report for the academic year 2022-2023, approximately 69,000 students participated in OPT programs. The outcome of the upcoming elections will significantly influence the future of the OPT program and related policies, as noted by immigration attorneys.

Final Words

The delayed implementation of the H-1B modernization plan and the potential impact of election outcomes underscore the uncertainty in U.S. immigration policies. Employers, international students, and immigration attorneys alike are keenly watching these developments, preparing for changes that could reshape the landscape of work visas in the United States.