H1B Program strengthened

Recently, there has been a public disagreement involving a few of President-elect Trump's advisers involving H1B visa. Elon Musk, a staunch supporter of Mr. Trump, argues that foreign workers who are petitioned under this visa category make America strong while there are those on the same party who hold the belief that the H1B visa system is open to abuse and scam and only displaces American workers. For now, Mr. Trump seems to side with Musk's argument claiming that he has used temporary foreign workers in his businesses as well and he likes those visas and has always been in favor of them. We shall see in the months to come where this brewing controversy will lead to.

In a related note, before 2024 ended, the Department of Homeland Security (DHS) announced a final rule that aims to modernize the H-1B program by streamlining the approvals process, increasing its flexibility to better allow employers to retain talented workers, and improving the integrity and oversight of the program. It is hoped that this new policy will better assist American companies in hiring employees most especially in critical jobs while at the same time protecting the legal rights of these foreign workers.

In its press release, the Secretary of Homeland Security Alejandro N. Mayorkas was quoted to have been saying that “American businesses rely on the H-1B visa program for the recruitment of highly-skilled talent, benefitting communities across the country . These improvements to the program provide employers with greater flexibility to hire global talent, boost our economic competitiveness, and allow highly skilled workers to continue to advance American innovation.”

One very significant provision in this new rule is that it extends certain flexibilities for students on an F-1 visa seeking to change their status to H-1B to avoid disruptions in lawful status and employment authorization for those F-1 students. To improve program efficiency, the final rule will allow USCIS to more quickly process applications for most individuals who had previously been approved for an H1B visa. It will also allow H1B beneficiaries with a controlling interest in the petitioning organization to be eligible for H-1B status subject to reasonable conditions.

The rule also ensures that the H1B program is not abused by ensuring and upholding USCIS's 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 specialty occupation available for the worker as of the requested start date; clarifies that the Labor Condition Application must support and properly correspond with the H-1B petition; and requires that the petitioner have a legal presence and be subject to legal processes in court in the United States.

In support of this new rule, USCIS will publish a revised edition of Form I-129, Petition for a Nonimmigrant Worker starting January 17, 2025.