DHS Rule Receives Applause for Addressing H-1B Visa Lottery Abuse

Posted by Berd & Klauss, PLLC on December 5th, 2023

The Department of Homeland Security (DHS) has recently introduced a proposal that aims to significantly curb the abuse of the H-1B visa lottery system. This new approach focuses on selecting applicants based on individual beneficiaries, irrespective of the number of submissions they have. Given the potential impact of these changes, seeking advice from a visa attorney in New York is highly advisable for those affected.

Key features of the new regulations

Under the reference RIN: 1615-AC70, the DHS's proposed regulations do more than just revamp the lottery system. They set up guidelines for voluntary work-site visits during compliance reviews and introduce new requisites for updating visa petitions when employment details change. The proposal also eases the path for entrepreneurs on H-1B visas to start new businesses and tackles the 'cap-gap' problems faced by student visa holders transitioning to H-1B employment.

Homeland Security Secretary Alejandro Mayorkas has highlighted the Biden administration's focus on attracting global talent and simplifying processes for employers while also safeguarding the system against fraud and abuse.

H-1B visa program at a glance

The H-1B visa, commonly used in the tech sector, allows employers in the US to hire foreign professionals for up to six years. Despite being capped at 85,000 new visas annually, the program saw over 740,000 registrations for the 2024 fiscal year. This overwhelming demand raises concerns about potential system exploitation.

In response, the US Citizenship and Immigration Services is warning of rigorous investigations that could lead to denials or criminal charges. Navigating these complexities makes consulting a visa attorney in New York essential.

Impacts on workers and business founders

By basing lottery selections on individual candidates, DHS aims to eliminate incentives for system manipulation and boost the negotiating power of H-1B workers, potentially leading to higher wages and indirect benefits for US workers.

For entrepreneurs, the new rules allow H-1B visa holders who own a majority of their business to qualify as employers. However, they must prove an employer-employee relationship with their company and spend most of their time in specialty occupation roles.

The DHS also suggests restricting the duration of visas for owner-beneficiaries to 18 months for the first visa and its initial extension.

Clarifying exemptions for research organizations

The proposed rule seeks to clear up who gets exempted from the H-1B cap, particularly focusing on nonprofits. By assessing whether research is a primary activity, the rule broadens the scope of what defines a 'research organization,' benefiting entities like hospitals and universities.

DHS's proposed changes to the H-1B visa program aim to balance the interests of foreign workers, US employers, and entrepreneurs. As these changes start taking effect, the expertise of a visa attorney in New York becomes indispensable for those navigating this shifting immigration landscape. Their advice and guidance will be key in understanding and adapting to the new rules and regulations.

If you need a visa attorney in New York, contact Berd & Klauss, PLLC, at 212-461-7152.

About the Author:

This content is written by Patrick Klauss, Esq, an immigration lawyer and a partner at Berd & Klauss, PLLC. The firm specializes in immigration and immigration-related issues and handles everything from immigrant visas to deportation and waivers.