On Tuesday, the Joe Biden administration announced a new rule that clarifies who is eligible to apply for an H-1B work visa, which is important for attracting international talent. This program has faced criticism for being overly complicated and prone to misuse, according to the official website of the Department of Homeland Security.
The new rule broadens the definition of "speciality occupation" and outlines specific requirements for nonprofit and government research organisations that wish to sponsor H-1B visas.
Ur Jaddou, the director of United States Citizenship and Immigration Services (USCIS), stated that the H-1B program, created in 1990, needed updates to better support the U.S. economy. The changes aim to help employers find skilled workers while also improving the program's integrity.
Supporting the argument, Homeland Security Secretary Alejandro Mayorkas emphasised the significance of the H-1B visa program, stating, “American businesses rely on the H-1B visa program for the recruitment of highly-skilled talent, benefiting communities across the country. These improvements provide employers with greater flexibility to hire global talent, boost our economic competitiveness, and allow highly skilled workers to continue to advance American innovation.”
Now, these new regulations, finalised on Tuesday, reintroduce a "prior deference" policy for visa extensions and address longstanding concerns over the program's integrity and accessibility.
Key changes to the H-1B regulations: (according to USCIS)
1. Prior deference for extensions: The reinstated "prior deference" policy streamlines the renewal process for previously approved H-1B visas, reversing changes made during the first Trump administration that had caused significant processing delays.
2. Redefined specialty occupation: The updated rules clarify the definition of “specialty occupation,” ensuring that the degree fields required for H-1B positions directly correspond with job responsibilities, thereby establishing clearer eligibility criteria.
3. Automatic extensions for F-1 students: To prevent status lapses, F-1 international students transitioning to H-1B visas will now automatically have their student visa validity extended during the application process.
4. Eligibility for entrepreneurs: The regulations specify that company founders with a controlling interest can qualify for H-1B status, provided they meet certain conditions.
In addition to these changes, the USCIS has improved the annual H-1B lottery system to target duplicate registrations, aiming to enhance fairness while maintaining the program's integrity. Despite a statutory cap of 85,000 new visas issued annually—20,000 of which are reserved for advanced degree holders—demand for H-1B visas continues to exceed supply, making the lottery system essential.
The new regulations also empower USCIS to conduct worksite inspections, with employers who fail to cooperate risking denial or revocation of their visa petitions.