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Tightening H1B eligibility
Immigration Attorney in a conversation with New India Abroad
Representative image / LinkedIn
Proposed Rule by Biden Administration Dramatically Tightens H-1B Eligibility
The proposed policies are similar to those enacted by the Trump administration, which critics characterised as draconian.
The US Department of Homeland Security has introduced a new rule that seeks to modernize the H-1B visa system, at the same time dramatically tightening eligibility requirements.
The proposed rule has a 60-day public comment period. After it was entered into the Federal Register on Oct. 23, the rule has received 427 comments. Many of the comments supported the rule, noting that employers have egregiously misused the H-1B system. Others opposed the proposed changes, saying they would potentially impose a hardship with greater requirements for proof of eligibility.
All comments must be submitted by Dec. 22. The proposed rule would then move to the Office of Management and Budget, where its fiscal implications would be reviewed.
Skilled workers from India gobble up roughly 72% of the 65,000 H-1B visas allocated each year.
Widely-cited immigration attorney Cyrus Mehta explained the proposed changes to the H-1B system in an interview with New India Abroad. Here are excerpts.
NIA: Mr. Mehta, could you start us off with a broad overview of the proposed changes?
Cyrus Mehta: When one reads the rule preliminarily, it looks good. It does try to promote efficiency, and it tries to keep up with the times. There are some very good aspects to the rule that should be commended. On the other hand, it redefines the speciality occupation, and I think that's the main problem. That may result in requests for evidence, which will create burdens on employers, and it could also result in denials.
NIA: Does this largely eliminate applicants with just a bachelor's degree?
CM: If you have a bachelor's degree in a specialized field and the position requires it, you can still qualify for an H-1 visa. Just to give you an example, let's say you are being hired as a software engineer and you have a bachelor's degree in computer science, you should be able to qualify for the H-1 visa.
The problem here is that the rule says that there must be a direct relationship between the duties of the position and the degree. So if you don't have the right degree or the position doesn't require a specific degree, then there will be a problem.
NIA: Do you expect to see a significant drop-off of applicants from India?
CM: No, I don't think so. Because people will still try. It used to be like this in the past: until about 2018 or 2019, we had all these restrictions. So we are used to dealing with that, and we were still able to get approvals.
NIA: Why did the Biden administration announce this proposed rule at this juncture? Is it attempting to curtail the overall scope of the H -1B program?
CM: It's hard to say because this portion of the rule is copied from the Trump rule that never went through. Labour has always been against H-1Bs, but that doesn't mean that policymakers makers on the right or politicians on the right love the H-1B program. They don't like it because they feel that there are too many foreigners coming in and taking American jobs, the way former President Donald Trump thought.
Both parties just feel that there have to be some restrictions. It shouldn't be made easy.
NIA: And Joe Biden has established himself as a very pro-labor President.
CM: Yes. Biden would be sympathetic towards the sentiments of unions. But I'm hopeful that the Biden administration will listen. I think they have proposed a rule in the right spirit: they want to make it efficient and modern because of the good features. So hopefully they will listen and they will broaden the definition of specialty occupation, which right now has been narrowed.
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