H-1B visas: US postpones selection process changes, rescinds speciality criteria

The United States will continue the current format for selecting petitions for H-1B visas until at least the end of the year and the agency that oversees the programme has rescinded an earlier policy that required computer programmers to produce additional proof to establish eligibility as speciality professionals.

The Department of Homeland Security has announced that instead of March 9, the changes in the selection process will now go into effect on December 31.

“For the upcoming H-1B cap season, USCIS (US Citizenship and Immigration Services) will apply the current regulations (random selection) to any registration period that takes place before Dec 31, 2021,” USCIS, an agency overseen by DHS, said in an announcement on Thursday.

The new selection procedure would have amended the lottery system of selecting petitions and would have prioritised higher-wage positions to ensure H-1Bs were granted only to highly skilled foreign workers, not to those with basic skills brought on low wages to replace local workers.

Also on Thursday, President Joe Biden announced a larger annual intake of refugees, up to a cap of 125,000, from the 15,000-limit announced by President Donald Trump for 2021. Biden’s new limit, which comes into effect in October, is nearer to the 110,000 ceiling for 2017 fixed by President Barack Obama. Trump had steadily brought it down.

Indians hired by US companies and US subsidiaries of Indian firms are by far the largest recipients of H-1B visas, accounting for more than 70% of the 85,000 issued annually. Many of them stay on, sponsored by the employers for Green Card leading up to citizenship.

The Trump administration had rolled out a series of measures to reform the H-1B visas to ensure it was not used by American employers to replace American workers with foreigners on low wages, as critics of the programme had long argued.

In March 2017, the Trump administration issued a policy memo that said computer programmers — or those with a basic bachelor’s degree — will no longer be presumed to qualify for H-1B. Employers will have to provide additional proof to establish the beneficiary had skills for a “speciality occupation”, as H-1Bs were meant to be used.

The USCIS announced on Wednesday it was rescinding that 2017 memorandum that had rescinded a “Guidance memo on H1B computer related positions”. A response is awaited from the USCIS to a request for details on who will be impacted exactly, and how.

The agency has ordered its officials to discontinue the use of the 2017 memo to adjudicate petitions. And said, “further guidance will be forthcoming”.

The Wednesday memo followed a December 16, 2020 order by the ninth circuit court of appeals overturning the USCIS’s denial of H-1B in one case calling it “arbitrary and capricious”. Though in denying the application, the agency had not cited the 2017 memo, “the denial followed its logic”.

The Biden administration has rescinded, reversed and withdrawn many of Trump-era immigration-related orders of the Trump administration — from the Muslim ban to the border wall. Last month, the administration withdrew a Trump administration order that rescinded work authorization for certain H-1B spouses.