November 6th, 2023 at 08:54 am
H-1B Petition 2024: USCIS Effective Changes to the H-1B Program – USCIS H-1B Processing
USCIS suggests practical adjustments to the H-1B program. Changes to the H-1B program might start as early as October 1, 2024. A 94-page proposed rule to update the H-1B program was recently published by US Citizenship and Immigration Services, a division of the Department of Homeland Security.
For workers in specialized occupations, companies can petition for workers under the H-1B temporary visa category. Specialty occupations in STEM fields typically qualify for a bachelor’s degree or its equivalent, and they involve the application of highly specialized expertise.
Congress Caps
The annual cap on H-1B visas is 65,000, with an additional 20,000 visas granted to individuals who complete a master’s or doctoral program at a US higher education institution. further exceptions to the cap. The yearly cap for H-1B visas was exceeded in fiscal year 2021 due to demand.
Each non-citizen for whom a US employer wanted to file an H-1B petition had to be electronically registered with USCIS. Electronic registration took the place of filing a comprehensive H-1B petition with the necessary supporting papers, which was more time-consuming for the agency’s employers.
Apprehensions were raised regarding the likelihood of misuse and the potential disadvantage that smaller firms with fewer job opportunities would face in the fiscal year 2024. For the first time, USCIS received more eligible multiple registrations than single registrations—that is, multiple registrations filed on behalf of non-citizens.
USCIS voiced grave concerns about potential registration system misuse, which it hopes to resolve by modifying the registration selection procedure. The USCIS has proposed a beneficiary-centric registration scheme that allows several unrelated firms to register the same non-citizen employee.
USCIS New Plan
The non-citizen will only be chosen once by USCIS. Every employer who registered the non-citizen will receive notification from the agency, and they will all have the chance to petition for the non-citizen under H-1B. Although the agency believes that this could give the non-citizen more negotiating power, it could also lead to a situation in which the non-citizen withholds information about multiple offers, and some employers—likely small ones—may have to pay the cost of petitioning only to have the non-citizen decline after approval.
USCIS has made clear that more than one final rule may be issued at various points in time. To modify the registration system in time for the fiscal year 2025 selection, USCIS has indicated a special interest in doing so. It appears more plausible that USCIS might approve a rule but postpone the launch date of the new registration system to a later fiscal year, as this would require the agency to release a final Rule and have a functioning system by the spring of 2024.
Change to extending status and work authorization
For F1 students who meet the requirements, USCIS suggests extending their status and work authorization. This includes requesting a change of status from F1 to H-1B for F1 students for whom a US employer files an H-1B petition. An F1 student who qualifies for cap Gap protection may only be extended up to October 1, which is the beginning of the fiscal year for which the US business filed the H-1B classification request.
That, however, frequently leaves insufficient time for the decision on the H-1B petition or to take into account a later suggested start date. An eligible F1 student would automatically receive an extension of status and work authorization until April 1 of the relevant fiscal year or the start date of the approved H-1B petition, whichever is earlier, if a US employer timely files a non-frivolous H-1B petition with change of status for the student.
This is a sensible modification that will assist US companies in hiring competitive international students who are just starting their careers.
Changes to the definition of US employer
Multiple changes to the definition of an employer in the United States have been proposed by USCIS. To file an H-1B petition, one must be employed in the United States. If the non-citizen holds majority voting rights or owns at least 51% of the US employer, USCIS suggests including beneficiary owners in the definition.
The non-citizen may carry out tasks that are directly associated with managing and controlling the company. They must execute specialty occupation duties at least 51% of the time, but they may also conduct incidental jobs like office work. With this modification, USCIS hopes to encourage more businesses to apply for H-1B status by making it clearer that petitioner ownership is not a barrier to obtaining the status.
Will adjudicators recognize that responsibilities directly related to business operations are also part of the specialist occupation tasks, or will they establish arbitrary boundaries that result in denials and disadvantages? Will the proposal help or hinder entrepreneurs in their use of it? Consequently, the USCIS suggested an 18-month cap for a new H-1B extension, rather than the customary three-year validity period.
Changes to the Definition of Specialty Occupation
Additionally, USCIS should anticipate opposition to its suggested changes to the legal definition of a specialist occupation and the standards for proving that the position offered falls inside one. A 2020 regulation attempt by USCIS to implement some of these recommendations was withdrawn due to procedural issues. Consequently, because the agency failed to give advance notice and a chance to comment
Once more, the organization recommends that the US business show that the degree program needed sits closely relevant to the job offered. Because adjudicators may rigidly look at formulaic similarities between degrees and jobs, such as an architecture degree for an architect, rather than understanding that a body of highly specialized knowledge and a specific specialty may be necessary to perform the job, the statutory definition of specialty occupation could result in more denials.
Other options, such as placing staff at third-party sites and conducting site inspections, are likely to cause serious problems in the absence of such an evident relationship. USCIS has simply extended the feedback period until December 22, 2023. USCIS has suggested that interested parties should participate and not only sit deterred by the deadline considering the significant ramifications of the numerous modifications.
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