H-1B visa: Good news for Indian techies as outgoing Biden admin eases rules

The H-1B visa is a non-immigrant visa that allows US companies to employ foreign workers in speciality occupations that require theoretical or technical expertise.

The outgoing Biden administration on Tuesday relaxed the rules for H-1B visa holders, making it easier for American companies to hire foreign workers with special skills and facilitating a smoother transition from F-1 student visas to H-1B visas, reported PTI.

The move is likely to benefit thousands of Indian tech professionals.

The H-1B visa is a non-immigrant visa that allows US companies to employ foreign workers in speciality occupations that require theoretical or technical expertise.

Tech companies in the US depend on these H-1B visas to hire thousands of employees every year from India and China.

The rule, announced by the Department of Homeland Security (DHS), focuses on providing greater flexibility to workers and employers by remodelling the definition and criteria for special positions and nonprofit and governmental research organisations that are exempt from the annual statutory limit on H-1B visas.

The move comes a month ahead of the transition of power in US, with Donald Trump set to take over as the next president after a swearing-in ceremony on January 20.

According to the DHS, the rule also extends certain flexibilities for students on F-1 visas wanting to change their status to H-1B to avoid disruptions in lawful status and employment authorisation for students holding F-1 visas.

These changes will also allow US Citizenship and Immigration Services (USCIS) to process applications quicker for individuals who had previously been approved for an H1-B visa.

Additionally, it will also allow H1-B visa holders with a controlling interest in the petitioning organisation to be eligible for H-1B status subject to reasonable conditions. The latest move by the outgoing Biden administration builds on its previous efforts to ensure that the labour needs of American businesses are met to reduce undue burden on employers while adhering to all US worker protections under the law.

"American businesses rely on the H-1B visa programme for the recruitment of highly-skilled talent, benefiting communities across the country," news agency PTI quoted Secretary of Homeland Security Alejandro N. Mayorkas as saying.

Mayorkas said that the improvement to the programme gives employers the flexibility to hire global talent, boost economic competitiveness, and allow highly skilled workers to continue to advance American innovation.

“The H-1B programme was created by Congress in 1990, and there’s no question it needed to be modernised to support our nation’s growing economy,” said USCIS Director Ur M. Jaddou.

The DHS said the rule also strengthens the programme's integrity by codifying USCIS’ authority to conduct inspections and impose penalties for failure to comply; requiring that the employer must establish that it has a bona fide position in a speciality occupation available for the worker as of the requested start date.

It clarifies that the Labour Condition Application must support and properly correspond with the H-1B petition. It requires that the petitioner have a legal presence and be subject to legal processes in the courts of the United States.

In order to implement the rule, a new edition of Form I-129, Petition for a Nonimmigrant Worker, will be required for all petitions beginning January 17, 2025, which is the rule’s effective date.

The DHS through USCIS is legally allowed to award 65,000 H-1Bs per year, with an additional 20,000 for applicants with advanced degrees, but many nonprofits are exempt from that cap.

H-1B petitions subject to the cap regularly exceed the number of legally available visas, which are issued annually at the start of the fiscal year. Applicants are chosen by a lottery system for review, meaning eligible applicants are often denied due to chance.

Cap-exempt organisations can petition for H-1Bs year-round and they are not subject to a statutory limit, a US news agency reported.

Under the new rule, nonprofit and governmental research organisations will be defined as those whose “fundamental activity” is research, rather than the previous “primarily engaged” or “primary mission” definitions, which led to confusion regarding which organisations were exempt from the cap and which were not, the report added.

Previously, the H-1B programme has been criticised for being susceptible to abuse in large part by organisations that flood the application system, lowering the chances of applicants subject to the cap lottery.