Proposed H-1B visa rules may narrow scope for applications: Indian experts

In a year, around 85,000 H-1B visas are issued against applications across countries. About 70 percent of these H-1B visas go to Indians every year due to the sheer high volume of applications from Indian candidates. Representative image

Proposed rules to modernise and overhaul the H-1B programme are more of a clean-up operation and will narrow the scope for applicants looking to qualify for the visa, experts in India said days after the US Citizenship and Immigration Services (USCIS) notified that it will update regulations governing the non-immigrant work visa.

H-1B is a non-immigrant visa used by US employers to hire highly skilled foreign workers, usually techies, for a specified period. In a year, around 85,000 H-1B visas are issued against applications across countries. Of this 20,000 are reserved for applicants with an American master’s degree or higher.

About 70 percent of these H-1B visas go to Indians every year due to the sheer high volume of applications from Indian candidates.

The proposed rules, which were announced on October 23, were intended to modernise, improve and increase flexibility in the H-1B visa programme. These rules are currently open for suggestions over a 60-day period.

Indian IT sector industry body, the National Association of Software and Service Companies (Nasscom), will be making a formal submission and has already begun a thorough industry assessment of the proposed rule. The recommendations will include the comments to address its concerns.

“Preliminarily, Nasscom notes that sections of the Proposed Rule align with the former administration’s unsuccessful attempts to limit the H-1B program in a manner that raises concerns for the IT industry. For example, the proposed tightening of the definition and requirements for H-1B “speciality occupations” narrows the scope of applicants, who will qualify for an H-1B visa and ignores the nature of our modern workforce, not found in the Immigration and Nationality Act (INA),” the industry body said in a statement.

The industry body added, “This and other hurdles in the Proposed Rule create difficulties for companies attempting to hire the necessary skilled workers to fill key and currently unfilled, jobs across STEM fields.”

According to Kamal Karanth, Co-founder of staffing firm Xpheno, the changes announced by USCIS are a combination of tightening administrative governance and easing talent participation in the process.

“Removal of the employer-employee relationship in the lottery process is a significant change being proposed. It opens avenues for founders to set foot with fewer restrictions around equity holding. However, not mandating an employer-employee relationship can open up other complications of governance,” he told Moneycontrol.

He added, “The other significant change is the removal of multiple application entries for the same resource. The single entry restriction will make it a fair competition for all in the applicant pool.”

Karanth said that the changes proposed will not directly impact the IT service players given their maturity of talent deployment and visa usage. The tighter scrutiny proposed will be done through stricter site visits, which is something that enterprises should brace for, he said.

Sonam Chandwani, Managing Partner, KS Legal & Associates believes the real test will lie in the execution. “Ensuring that these changes don't just look good on paper but also foster a transparent, efficient, and inclusive employment landscape in practice.”

She told Moneycontrol, "Amid an evolving global workforce, the proposed changes to the H-1B visa programme by the Biden administration aim to enhance efficiency, provide vital flexibility to students, entrepreneurs, and non-profit workers and fortify the integrity of the system. While these adjustments don't alter the capped visa numbers, they reflect a progressive attempt to harmonize the demands of US employers, especially in tech sectors, with the aspirations of skilled workers from regions like India and China.”

Nasscom too applauded the move overall saying that there were several welcome changes found in the proposed rules that reaffirm the Biden administration’s recognition of the substantial gap in supply and demand for skilled workers.