U.S. Adjusts H-1B Visa Program To Allow American Companies Hire Foreign Workers

The Biden administration has finalised a new rule to modernise the H-1B visa program, with changes aimed at streamlining approvals and enhancing employers’ ability to hire international talent while cracking down on misuse.

Announced on December 17, the rule will take effect on January 17, 2025.

The updated regulations introduce additional protections for F-1 students transitioning to H-1B status to prevent disruptions in employment authorization.

They also refined the definition of an H-1B “specialty occupation,” among other updates.

“American businesses rely on the H-1B visa program for the recruitment of highly skilled talent, benefitting communities across the country,” said Alejandro N. Mayorkas, Secretary of Homeland Security.

“These improvements to the program provide employers with greater flexibility to hire global talent, boost our economic competitiveness, and allow highly skilled workers to continue to advance American innovation.”

First proposed in October 2023, the rule represents one of the Department of Homeland Security’s (DHS) most significant immigration measures during President Biden’s tenure.

It has been widely praised by stakeholders as a “significant step forward for higher education institutions, US employers and the national economy, as well as current and future American-trained students,” according to Miriam Feldblum, executive director of the Presidents’ Alliance on Higher Education and Immigration.

The rule’s extension of the “cap gap” provision for F-1 students transitioning to H-1B status has been particularly well-received, with many believing it will encourage more American-trained students to pursue employment in the United States.

“The final rule includes a mix of protection for workers, shoring up the integrity of the program, and making clearer which employers qualify for exemptions from the H-1B lottery,” said Dan Berger, an immigration lawyer and member of the Presidents’ Alliance Legal Advisory Council.

“International students and scholars, and their employers, will benefit from having clear guidance on a complex topic like the H-1B.”

Currently, some companies and educational institutions can apply for H-1B visas outside the annual DHS cap. This exemption has been modestly expanded to include additional nonprofits and government research organizations.

However, not all aspects of the rule have been met with unanimous support. Concerns have been raised over the revised definition of a “specialty occupation,” which now requires a minimum entry-level qualification of a “directly related” bachelor’s degree.

The Presidents’ Alliance criticized this requirement, arguing that it could lead to “counterproductive matching exercises” between degrees and occupations, potentially preventing graduates from applying their skills across various roles.

“The proposed rule’s matching exercises between degrees and occupations will be arbitrary because they simply will not reflect the reality of the skills required to fill specialized positions, instead forcing round pegs in square holes,” Feldblum wrote in a letter to the United States Citizenship and Immigration Services (USCIS) and DHS.

The Alliance has urged the removal of the “specialty occupation” definition, the “directly related” standard, and the exclusion of general degrees such as business administration and liberal arts, which are currently not considered sufficient under the new criteria.