New H-1B Updates May Upend International Hiring

Navigating the latest complexities of hiring foreign talent.

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Jan 29, 2024

As we begin 2024, many companies are reevaluating their business processes and identifying new ways to grow, and this includes employing foreign talent. As such, recruiters and hiring managers must be aware of the latest complexities governing business immigration processes to best support job candidates in successfully establishing work and residency in the United States.

For many companies, especially those within the tech industry, the H-1B work visa may be the ideal and most convenient way to hire foreign employees. It allows an employer to sponsor an individual with a bachelor’s degree, or a combination of work and education equivalent, to work in the U.S.

The H-1B visa process is extremely competitive, as in each fiscal year only 65,000 visas are issued for “regular” applicants and 20,000 for those who possess an advanced U.S. degree. This is sanctioned and controlled by the U.S. Citizenship and Immigration Services (USCIS), which oversees a lottery system that determines which eligible applicants can formally apply for the visa.

The H-1B lottery for the 2025 fiscal year will open in March 2024. Simultaneously, USCIS is also in the process of tightening the H-1B process to address the continued rise in fraudulent registrations. If such updates become law, they will impact employer sponsors (and employee applicants) in the 2024 lottery, making it crucial that employers prepare accordingly.

Combatting Disqualification of Candidates Applying for Multiple Companies

Companies have historically been unable to file multiple registrations for the same employee. However, employees are permitted to file multiple registrations under different companies. This causes copious duplicate filings which leads to an unfair advantage for those holding multiple petitions.

An issue we’ve seen firsthand is when several candidates employed by various corporations have sought to have additional registrations filed on their behalf by secondary employers — primarily consulting companies — with the expectation that if the registration with the consulting company was selected, they could effectively continue working for the corporations through a consulting arrangement. However, the corporate companies have not been willing to pursue this option, given the layer between them and the employee.

Furthermore, the USCIS is attempting to block the allowance of duplicate filings going forward, meaning applicants applying for multiple companies would be required to do so under a singular lottery entry.

Mistakes in a job candidate’s lottery application can jeopardize their ability to work for any employer. Therefore, employers that are passionate about recruiting specific candidates should have honest conversations with them about their application intentions, and highlight these updates to ensure these candidates do not inadvertently disqualify themselves. If applicable, it may be worth putting these individuals in touch with the company’s business immigration lawyers to assist them in filing the petition properly.

Addressing New Criteria for Eligibility

Another significant change being considered is the revision of the definition of a specialty occupation. The updated rule codifies that “there must be a direct relationship between the required degree field(s) and the duties of the position; there may be more than one acceptable degree field for a specialty occupation; and a general degree is insufficient.”

This change may allow for flexibility, allowing employers to better implement skills-first hiring. However, it will also require more responsibility on the part of the employer to prove how a seemingly unrelated degree can directly tie into the terms of the position.

This will place a new emphasis on the recruitment process, as recruiters and hiring professionals will want to consider the specific courses taken and skills possessed by the candidate relating to the job position. It will also allow for the streamlined elimination of candidates who do not possess degrees generally applicable to the occupation.

Informing of Amended Work Location

Any change of physical work location that requires a new Labor Condition Application (LCA) will become a material change to the H-1B process. If passed, employers will need to file a new or amended petition with the USCIS to receive approval for the H-1B candidate to resume work in the new location.

For instance, if an employer initially recruits a candidate to work onsite in their California office, but upon review decides to staff the candidate in New York, the USCIS will need to be properly notified of the change.

An exemplary model we’ve seen implemented by a corporation was the use of a system wherein the internal immigration team is automatically notified when an employee submits a change in address in the HR system. This has become an important catch-all to ensure compliance with address requirements, especially when much of the workforce is remote or hybrid.

The consequences of not properly updating an address can be very cumbersome. For example, an employee of a corporate client had moved out of the geographical area listed on their H-1B petition without notifying business immigration lawyers or the company’s global mobility team. When the employee finally updated his address with the immigration team, he was required to move back to the location listed on his previous H-1B petition until his H-1B amendment was filed. Although it created a significant complication to do so, it was necessary in order to maintain compliance with his immigration status.

Complying With Agency Site Inspections

The USCIS is also emphasizing the compliance of agency site inspections to ensure proper verification of qualifying information and the conditions of employment. This may include interviews with company officials, review of relevant records pertaining to business immigration practices, and onsite inspections. Refusal to comply can result in the denial or revocation of the H-1B visa petition, which is why companies must be prepared to participate in such evaluation processes.

The need for these processes is highlighted by the 2018 allegations against Pradyumna Kumar Samal, the CEO of technology firms in Redmond, Wash., who was found to have forged over 200 H-1B applications by falsifying records from “clients.”

Samal also fabricated job positions on the H-1B visa application and once hired, switched employees to new roles not indicated on the application. The aforementioned interviews and investigations will ideally eliminate fraudulent cases like this.

Exploring Alternatives to the H-1B

With the complex and competitive nature of the H-1B process, especially with the looming USCIS updates, it may be worth implementing backup plans when it comes to hiring foreign talent. Below are several more accessible business immigration options that may be alternatives for H-1B applicants.

J-1 visa. This visa is available for trainees and recent graduates, who with a third-party sponsor can stay and work in the U.S. while waiting to reapply in the next H-1B lottery. J-1 visas are overseen through a training program.

TN visa. This is limited to citizens of Mexico and Canada who hold a degree in a field on the trade and NAFTA agenda, and is particularly a good option for engineering and science professionals, as opposed to business professionals.

H-1B1 visa. The H-1B1 is a non-immigrant intent visa that is limited to citizens of Singapore and Chile, and extended on an annual basis. However, green cards and immigrant visas are not aligned under this status as it is not a means for permanent residence.

E-3 visa. This visa applies only to citizens of Australia, and provides an initial three years of work authorization. Like the H-1B1 it is for non-immigrant intent.

O-1 visa. The O-1 visa is restricted to those with extraordinary abilities who have demonstrated their work on a national or international level through such means as a significant prize/award, publication in major journals, prominent media coverage of work/research, obtainment of a patent, or membership within an organization that requires significant achievements for admission.

In addition to the options listed above, it may be worth exploring the possibility of an L-1, which is an intra-company transfer visa. This option may be available where a company has operations in other countries outside of the U.S.

Moving Forward

With the upcoming H-1B visa lottery, it is advised that hiring managers begin planning for the best and worst scenarios ahead. Compliance with the H-1B program impacts all stages of the hiring process, from initial screening and recruitment to interviewing for job offers to post-integration into an organization. Recruiters should therefore educate both themselves and job candidates on the latest protocols to ensure the best chances of success in the H-1B lottery and application processes.

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