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The Outlook On H-1B Visas And Immigration In 2024

The year 2024 will be eventful on immigration policy and includes a presidential election in November and new policies on H-1B visas. Below are the immigration issues to watch.

Changes To The H-1B Lottery

In the proposed H-1B visa rule published on October 23, 2023, U.S. Citizenship and Immigration Services announced plans to change the H-1B selection process, likely in time for the upcoming H-1B lottery in March 2024.

Under current policy, USCIS uses a lottery when companies file more H-1B applications (or registrations) than the annual limit of 85,000 (65,000 plus a 20,000 exemption for advanced degree holders from U.S. universities). In the proposed rule, USCIS said registrations for FY 2024 increased largely due to multiple registrations submitted for the same individuals.

Employers hiring high-skilled foreign nationals must overcome the low annual H-1B limit, which equals only 0.05% of the U.S. labor force. USCIS would have rejected over 75% of H-1B registrations for FY 2024, even if beneficiaries with multiple registrations were excluded from the lottery. H-1B registrations with only one employer increased by 66% between FY 2022 and FY 2024.

Employers have expressed support for the USCIS proposed solution to the multiple registrations issue—selecting H-1B registrations by unique beneficiaries. This was suggested in a May 1, 2023, Forbes article.
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“Under the proposed update to the random selection process, registrants would continue to submit registrations on behalf of beneficiaries and beneficiaries would continue to be able to have more than one registration submitted on their behalf,” according to USCIS. “Selection would be based on each unique beneficiary identified in the registration pool, rather than each registration. Each unique beneficiary would be entered in the selection process once, regardless of how many registrations were submitted on their behalf.”

USCIS plans to use passport information to identify beneficiaries, and individuals would select among the employers that submitted H-1B registrations on their behalf.

Will USCIS Keep Restrictive Measures In The Proposed H-1B Rule?

Employers welcomed some measures in the proposed rule, such as “cap-gap” employment protection for international students, but oppose the new ways the government would restrict who qualifies for an H-1B petition. In comments to the rule, the National Foundation for American Policy highlighted two notable restrictions.

First, the rule uses the phrase “directly related specific specialty” to narrow the positions considered specialty occupations. The rule states that to qualify as a specialty occupation the position must require “A U.S. baccalaureate or higher degree in a directly related specific specialty or its equivalent” for entering the occupation. Critics have derided the Biden administration for copying the language from a Trump administration restrictive interim final rule published, which courts later blocked. Attorneys and companies warned in 2020 that the language of the interim final rule would stop many talented foreign-born professionals from working in America. (See here for additional analysis.) The Immigration and Nationality Act (INA) does not say a degree must be in a “directly related” specific specialty.

Read More: Forbes

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