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Biden seeks H-1B work visa changes as 2024 politics heat up

Biden's administration proposes H-1B visa changes to curb fraud and redefine specialty occupation criteria, which could increase costs for employers.

President Joe Biden's administration is proposing changes to H-1B visa requirements to close the door to visa lottery system fraud. But it also wants to adjust how skills are defined under the visa system, which may complicate an employer's efforts to hire a visa worker.

The U.S. received nearly 800,000 registrations for the H-1B work visa lottery this year thanks to a cheaper entry fee that also raised concerns about potential abuse. With the onset of electronic registrations in 2019, employers pay only $10 per applicant. If an employer wins, the next step is to submit a petition or application for a visa, which can cost more than $2,000 in legal expenses plus visa fees.

The Biden administration is attempting to curtail the abuse it saw due to the low-cost H-1B work visa registration system. An H-1B candidate with genuine offers from two or more firms might have their name entered twice in the lottery. But other employers used affiliate companies to submit an applicant's name many times to improve their odds of winning a visa.

The proposed H-1B visa requirements change is trying to "cut down on multiple registrations by related entities to try to keep companies from gaming the system," said Ian Wagreich, an immigration attorney at Hinshaw & Culbertson LLP in Chicago.

Wagreich believes the proposed rule change will "significantly lower" the number of H-1B lottery registrations.

The administration is also seeking changes to how the H-1B visa system defines a "specialty occupation," or the academic requirements required for a particular job.

Marcela Bermudez, an immigration attorney at Greenspoon Marder LLP in New York, said this redefinition tightens the criteria, giving the U.S. Citizenship and Immigration Services (USCIS) more of a basis to challenge what is deemed a specialty occupation.

Today, employers can cite a business administration degree, for instance, for a management role. That is something the government will usually accept, Bermudez said. But with this new rule, the USCIS can require a degree be closely related to the job at hand, she said.

Bermudez warned that this could heighten both the costs to employers and the risk of visa denials, as proving the direct relevance of a degree to an occupation becomes more challenging. The government is likely to issue more requests for evidence or documentation in support of the visa petition, she said.

Candidate stances

Biden has yet to make the H-1B issue a 2024 re-election campaign talking point. But he can convey how he views the program through administrative changes and legal actions that make the visa program harder or easier for employers to use.

His administration's proposed changes are also coming at a time when the visa issue is getting more attention in the election. There are sharp divisions among the Republican candidates seeking their party's nomination. Some want significant changes to the visa program, while others are calling for an increase in applicants for needed skills.

The proposed H-1B changes could cut down on multiple registrations.
Ian WagreichImmigration attorney, Hinshaw & Culbertson

Florida Gov. Ron DeSantis has voiced criticism of the H-1B work visa program, while rival Vivek Ramaswamy, an entrepreneur, wants it completely removed.

But Nikki Haley, former South Carolina governor, argued for increased immigration and merit-based selection based on economic needs. Doug Burgum, North Dakota governor, is a vocal supporter of visas for skilled workers.

Former President Donald Trump's administration attempted to end the visa lottery in favor of a system prioritizing higher-paying employers. But employers challenged the plan in federal court, where a judge issued a summary judgment against Trump's changes. The ruling wasn't appealed.

The government is seeking public comment on its proposed rule changes through Dec. 22.

Patrick Thibodeau covers human capital management and ERP technologies. He has worked for more than two decades as an enterprise IT reporter.

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