Sarah Bileti
By Sarah Bileti
Over the past year the immigration landscape has been shaped by a myriad of factors including mass tech layoffs, the easing of COVID related travel restrictions, and changing employer attitudes regarding remote work. As we move into the new year there are several issues and trends employers should be aware of.
Changes to the H-1B Cap Lottery Registration System.
The H-1B visa is the most used and sought after nonimmigrant employment visa for foreign professional workers with a congressionally mandated annual quota of 65,000 and an additional 20,000 for foreign nationals holding a U.S. master’s or advanced degree.
Given the limited number of H-1B visas available annually, the demand far surpasses the supply. As a result, United States Citizenship and Immigrations Services (USCIS) utilizes an annual lottery system that requires employers to submit an electronic registration form for each foreign worker they wish to employ in H-1B status. The lottery registration period generally runs for the first two weeks of March each year, with results emailed to employers on or before April 1st. USCIS received 483,927 registrations in 2022 and 780,884 registrations in 2023, representing an unprecedented increase of over 60% year on year.
Given these huge increases in registration numbers over the past few years, as well as the issue of many foreign beneficiaries being registered multiple times by different employers, the Department of Homeland Security (DHS) released a notice of proposed rulemaking on October 23, 2023 that seeks to improve the H-1B program in several respects, most notably by strengthening the integrity of the lottery registration process. In particular, the proposed rule seeks to link selection to each unique beneficiary rather than each registration. In this way, even if an individual has multiple registrations submitted by different potential employers, if he or she is selected, each employer who filed a registration for the individual would be notified and the foreign worker would then be allowed to determine which employer to proceed forward to filing an H-1B petition with. With this change, DHS aims to ensure that all registrants in the H-1B cap lottery have the same chance of selection regardless of how many registrations are submitted on their behalf. This approach is also beneficial in that it can provide more certainty to employers and employees earlier on by reducing the need for additional rounds of lottery selection in a given year. In 2023, USCIS conducted multiple rounds of lottery selection as a result of not filling the annual quota after the first round of selections, likely due to many registrants receiving multiple selections.
H-1B Employers Should Closely Monitor Work Locations for Remote Workers
Beyond the H-1B cap lottery, a recent Appeals Court Decision underscores the need for employers to closely monitor work locations for remote H-1B workers. H-1B workers are permitted to work only at the location(s) listed in the H-1B sponsorship petition filed by their employer. This is largely due to the associated Labor Condition Application (LCA) and prevailing wage requirements designed to prevent wage discrimination of foreign workers. The prevailing wage rate is defined as the average wage paid to similarly employed workers in the requested occupation in the area of intended employment.
USCIS regulations state that employers are required to file an H-1B amendment on an employee’s behalf if any “material change” occurs to the employee’s current authorized employment. This includes significant changes in job duties, salary, and worksite. The H-1B amendment must be filed before the material change in employment occurs.
The U.S. Court of Appeals for the District of Columbia in ITServe Alliance, Inc. v. United States Department of Homeland Security (1:20-cv-03855) maintained that USCIS has the authority to require H-1B amendments for employees who have moved to a new location, meaning that USCIS will likely monitor this issue closely in the near future and issue Requests for Evidence (RFEs) on petitions that show discrepancies in H-1B employee work location.
Typically, if an H-1B employee is working remotely, their home address is listed as one of the worksites on the original LCA accompanying the H-1B petition. If the employee moves outside of the county or geographic area listed on the LCA, this is considered a material change and an H-1B amendment must be filed. Considering this, it is important for employers to implement a system to monitor remote work locations and advise employees to notify them of potential change in remote work location. Filing an H-1B amendment with USCIS can be costly, and if not filed before a material change takes place, an H-1B amendment can introduce unwanted scrutiny into a foreign national employee’s maintenance of status.
Q&A
Q: Will H-1B workers be able to renew their visas in the U.S. in 2024?
A: Officials for the U.S. Department of State (DOS) recently announced that 20,000 H-1B workers will be permitted to renew their visas in the U.S. beginning in January 2024 as part of a pilot program. An official notice in the Federal Register is anticipated before the end of 2023 with additional eligibility details. This stateside visa renewal program is one of several measures DOS is implementing to assist in reducing backlogs and long wait times for U.S. visa appointments globally.
Those selected to participate in the pilot program will be permitted to mail their H-1B visa renewal documents directly to DOS rather than having to travel outside the U.S. and face long or uncertain wait times to secure a visa appointment at a U.S. consular office before returning. However, DOS has stated that H-4 dependents will not be eligible to participate in this pilot program.
Q: Are there new visa options for foreign nationals working with Artificial Intelligence?
A: On October 30, 2023, the Biden Administration issued an Executive Order on the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence” that could prove beneficial to foreign employees and employers working with artificial intelligence (AI). The Order lays out eight guiding principles with respect to AI as well as a number of regulatory requirements designed to realize those principles, including promoting innovation and competition by enhancing the AI workforce of highly skilled immigrants and non-immigrants by modernizing and streamlining visa criteria, interviews, and reviews. While there are no specifics yet, this may lead to positive developments for employers and foreign workers in the AI space in terms of immigration options and pathways to nonimmigrant and immigrant visa availability.
