The H-1B shakeup: New, proposed rules target degrees, fees, and Indian IT

Here’s the breakdown:

The US Citizenship and Immigration Services (USCIS) is expected to release final rules soon that might make it harder for companies to hire foreign tech workers with H-1B visas. These visas are commonly used by tech companies to bring in skilled workers from other countries.

What’s changing?

Currently, the  9/11 Response and Biometric Entry-Exit Fee only applies to initial H-1B and L-1 visa petitions, not extensions. This fee, established in 2015, goes towards funding national security programs, including biometric technology for tracking foreign national entry and exit.

The proposed rule change would broaden the application of this fee to include all petitions, meaning companies would now have to pay:

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  $4,000 for extending an H-1B visa
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  $4,500 for extending an L-1 visa

Point to note: Right now, only companies with a specific profile have to pay a fee to extend H-1B or L-1 visas for their employees. This profile is:

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  Companies with more than 50 employees
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  More than half of those employees are on H-1B or L-1 visas

Proposed change: The government is proposing to expand who has to pay this fee. Under the new rule, ALL companies applying for H-1B or L-1 visa extensions would be required to pay the fee.

Why the change?

The Department of Homeland Security (DHS) argues that these additional fees are necessary to:

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  Enhance the biometric entry-exit system: The collected funds would bolster the existing system used to track foreign national movement.
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  Ensure employer contribution to national security: By requiring all employers to pay the fee, DHS aims to achieve a more balanced contribution towards security programs.

Potential Impact

If implemented, this rule could have a significant impact on businesses that rely on foreign tech talent. The increased costs associated with visa extensions might lead to:

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  Shifts in hiring strategies: Companies may prioritize hiring American workers or workers already on visas that don’t require extension fees.
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  Reduced competitiveness: Higher costs could make US companies less competitive in attracting top foreign talent in the tech sector.

 Redefining “Specialty Occupation”:

The new rules aim to limit H-1B eligibility by requiring jobs to demand degrees directly related to the specific specialty.

This is similar to a past Trump-era policy challenged in court for excluding many skilled professionals.

 

Business administration degrees might be categorized as “general” and deemed insufficient under these new rules. This proposal comes alongside other planned changes to the H-1B visa program.

 

What’s controversial: Some parts of the proposed rules are similar to ones suggested by the previous US government, which experts say would hurt the US tech industry. For example, the new rules might make it harder for companies to hire foreign workers whose degrees aren’t exactly in the specific field they’d be working in. But lots of tech workers, even American ones, don’t have degrees in the exact field they work in!

Why has the Department of Homeland Security proposed these changes?

DHS inevitably seeks to enhance the biometric entry-exit system, and these additional funds will bolster the potential foundation. Further improvements and maintenance of the system ultimately hinge on sufficient funding.

Moreover, the proposed criteria will ensure employers universally contribute to national security.

With more financial responsibilities weighing on US employers, companies will likely switch their hiring strategies if the proposal goes through.

Initially proposed on October 23 2023, the regulations are now entering a 60-day public commentary phase. Currently, the DHS is seeking public feedback on the proposed changes. The general public’s comments window will close on July 8, 2024. 

First Published: Jun 24 2024 | 10:20 AM IST