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In a transformative move, the US Department of Homeland Security (DHS) has recently implemented changes to the H-1B visa program, introducing a beneficiary-centric selection process. The final rule—which is effective starting March 4, 2024—aims to address concerns related to fraud and fairness in the H-1B visa registration system.
The core modification in the new rule centers around the selection process, shifting the focus to unique beneficiaries. DHS will now choose H-1B registrations based on individual applicants rather than the quantity of registrations submitted. This shift is designed to minimize the potential for abuse, as employers will no longer gain an undue advantage by submitting multiple registrations for the same individual without a genuine intent to make job offers.
One notable provision includes enhanced flexibility in the start dates for some cap-subject H-1B petitions. Additionally, alterations in the registration process, such as the requirement for valid passport or travel document information, aim to bolster the overall integrity of the system.
This rule, effective just before the opening of the initial registration period for fiscal year 2025 H-1B cap petitions, follows DHS’s commitment to addressing criticisms of the H-1B process throughout 2023. With over 408,000 registrations featuring workers with multiple eligible entries out of 758,000 eligible fiscal year 2024 registrations, the move is seen as a step toward rectifying potential abuses.
Stakeholders, including the Society for Human Resource Management (SHRM), have expressed support for the beneficiary-centric approach.
“This measure promises to remedy abuses of the cap selection process that have resulted in considerable unfairness to many employers who followed the rules of the process and were honest in their responses on petition forms and yet may not have had an application selected through the cap selection process,” SHRM wrote in a Dec. 19 public comment.
The new approach has been favorably received by employers who view it as leveling the playing field. Kevin Miner of Fragomen believes that this change could eliminate the need for multiple lottery rounds, potentially benefiting international students.
“On balance, the rule seems to strike a balance between ensuring fairness in the system and providing flexibility for individuals with multiple job offers,” Miner shared with Forbes. “It doesn’t change the reality that until Congress raises the H-1B quota, businesses will continue to struggle to retain highly skilled foreign national talent.”
However, concerns have been raised about the possibility of a bidding war resulting from the new approach, as employers might not be aware of multiple registrations for the same individual.
The DHS decision to split the final rule from the longer proposed rule indicates a phased approach to addressing concerns in the H-1B program. While the current rule focuses on beneficiary-centric selection, the agency intends to publish a separate rule to address other proposed changes, such as amending the definition of “specialty occupation.”
The beneficiary-centric selection process is a welcome change for many stakeholders, offering a more transparent and fair approach to the H-1B visa registration system. However, challenges persist, and the broader issues within the H-1B program may require additional rule changes or legislative action to address effectively.
This article was created with assistance from AI.
