Proposed Changes to U.S. Work Visa Process

Well how’s that for a casual Friday night news dump?

USCIS quietly announced a proposal that would change, clarify, and “modernize” the H1B application process more than any other single update since the 1980s.

I read the entire Federal Register Notice so that you don’t have to (but if you want you can read it all here). Again, this is a proposal, so nothing is going into effect yet. It should also be noted that I am a Designated School Official, not an immigration attorney, so these are my observations and understandings based on the work that I do with international students on a daily basis.

With that in mind, here are my top 5 takeaways.

1. A More Fair Approach

   This rule proposal would limit submissions to the H1B lottery to one per beneficiary (the person that the application is filed on behalf of). This would effectively level the playing field and eliminate the advantage that larger companies create for themselves by filing multiple submissions for the same employee.

2. Redefining Education Criteria

   This rule would reflect the practical reality that most jobs, even specialty jobs, can be performed by candidates with degrees in a range of fields. While the speciality position would still need to be directly related to the beneficiary’s program of study, the stated purpose of this proposal is to allow greater flexibility in how the educational requirement is met.

3. Automatic and Longer Cap-Gap.

   News flash: H1B approvals can often come in after October 1st. Currently all cap-gap authorizations end on September 30th, so if USCIS takes longer to approve a petition then both beneficiaries and their employers are out of luck. This proposal would extend the cap-gap authorization until April 1st of the following year, all but eliminating authorization gaps.

4. Path for Entrepreneurs

   Currently an H1B application can be complicated if the beneficiary of the H1B petition is also one of the company owners. I say “complicated” because the current guidance doesn’t directly address this situation, so the proposed rule would codify that it is allowed so long as the other H1B requirements are met.

5. Beneficiary-First Model

   Talk about saving the best for last. Finally, the H1B application process just might grant the beneficiary equal footing with the petitioner (company). Currently, companies have all the power- they choose who to sponsor, they communicate directly with the government during the application process (and may or may not share any of this with the potential beneficiary), and they can revoke the application at any time. Under this proposal, beneficiaries would be able to have multiple companies apply to sponsor them for H1B and they could communicate with USCIS about the application themselves. Cheers for applicant rights! 👏👏👏

All in all, the rule proposals appear to be a big win for H1B applicants, many of whom happen to be the international students that I’m fortunate enough to work with every day.

I’ll be diving deeper into this topic during a special live webinar today (Tuesday 10/24) at 12:00pm PST / 3:00pm EST.

If you’re interested in attended, please RSVP here: https://forms.gle/dBjxG72SQsMd6QyUA

If you’re interested in the information but can’t attend, go ahead and register anyways so I can send you a copy of the recording.

And of course, please feel free to share this information with anyone that you think might benefit from it.

Have a great rest of your week everyone!

-Josh