H-1B Visa: What happened in US immigration this week?

For Indian H-1B aspirants and Indian IT firms, there was enough to rejoice this week. The Department of Homeland Security (DHS) delayed the implementation of fresh H-1B selection based on wages till the end of 2021.

The United States Citizenship and Immigration Services (USCIS) will open the H-1B election registration process on March 9 and it will be closed on March 25. The agency also rescinded a memo that denied H-1B visa for computer programmer related occupations.

While the DHS delay in implementation will ensure that the H-1B visa process will be based on lottery for the current year, the latter could result in better predictability in the H-1B approval process.

Wage-based selection of H-1B petitions deferred

On January 7, the USCIS announced wage-based selection of fresh H-1B petitions instead of lottery through a final rule. The rule was expected to come into effect on March 9, 2021 with the possibility of this being implemented for the H-1B selection process this year.

The USCIS kicks off the H-1B selection process in March and issues 85,000 fresh visas every year. The DHS has now deferred it till December 31, 2021. So for the current year, selecting H-1B petitions based on lottery would continue.

This is a huge relief to the entire IT ecosystem, at least in the short term, given that the implementation would make it tough for freshers and those with fewer years of experience to qualify for an H-1B visa. India accounts for about a significant share of H-1B visas issued every year.

This delay, DHS said, will give the agency enough time to develop, test, and implement the modifications to the H-1B registration system and selection process. “The delay will also provide more time for USCIS to train staff and perform public outreach as well as give stakeholders time to adjust to the new rule,” the statement further said.

The IT industry body NASSCOM said in a statement, “NASSCOM welcomes this announcement by DHS including undertaking a detailed review of the rule.”

But, clearly the Biden administration is not looking to rescind it. So this means that though the process might undergo changes, it is pretty much on track. According to NASSCOM, “Prioritizing purely on wage levels has the potential to significantly damage some of the most innovative companies in the world along with many hospitals and health care providers, research facilities, universities and other petitioners.”

Indeed. If the wage-based lottery selection were to be implemented, smaller IT firms will not be able to offer higher wages for fresh graduates and hence would lose access to the highly-skilled talent pool. For larger IT firms, this would mean additional cost and it is yet to be seen how the hiring pattern would change.

NASSCOM said that it would be filing comments in support of the delay and will also share the comments with the DHS for the final rule.

H-1B registration process to kickstart on March 9

The USCIS will start the H-1B electronic registration process on March 9 and will close it on March 25. The companies can register for the H-1B process in the given window for a fee of $10, which is non-refundable.

If the registrations go beyond the 85,000 H-1B allocated for the year, petitioners would be selected based on lottery, which is likely to be replaced by wage in the next year. Selected registrants would be notified by March 31.

Filing of H-1B applications begin on April 1, 2020 along with the H-1B processing fees.

Rescinding memo that denied H-1B visas to computer programmers

In yet another significant move the USCIS also rescinded a problematic memo that denied visas to computer programmers.

The USCIS on February 3, 2021 removed the guidance memo on H-1B computer-related occupations effective immediately. The move came after the US appeals court ruled on December 16, 2020 that the USCIS used the said memo to deny H-1B petition in an “arbitrary and capricious” manner for an employee at Innova Solutions.

Innova Solutions had filed an H-1B petition, a specialty occupation visa in the US, for Indian citizen Dilip Dodda for the position of a Programmer Analyst between August 2017 and October 2020. He holds a bachelor’s degree in Electrical and Electronics Engineering. The USCIS denied the visa on grounds that the role did not fall under the specialty visa programme H-1B.

The company filed a lawsuit and the appeals court ruled in favour resulting in the reversal of the denial.

Given that Indians are the largest beneficiaries of the visa, such decisions had a huge impact on them and also the companies that are hiring due to the uncertainty. With the memo rescinded, there is better clarity on the H-1B visa denials for employers as well the employees.