Breaking News: DHS Sets 'Unique Beneficiary' Rule in H1B Lottery, Ending Multiple Registrations

In the latest news scheduled to be released on Oct 23, 2023, the H-1B visa program, a crucial pathway for skilled foreign professionals to work in the U.S., is set to undergo significant changes. The U.S. Department of Homeland Security (DHS) has proposed amendments to modernize and enhance the program's efficiency. These changes are not just procedural but are aimed at ensuring the program's integrity, transparency, and flexibility.

Unique Beneficiary Selection

In response to the FY2024's H1B lottery controversy, where certain employers and beneficiaries collaborated to file numerous petitions for a single individual, the DHS suggests:

• Select registrations by unique beneficiary

• Prohibit multiple registrations for the same beneficiary

The H1B Visa Approval Bar is Raising

The DHS is proposing to formalize its authority through regulations, allowing for a more rigorous examination of H-1B petitions. This would encompass the ability to request employment contracts, confirm that the employee will be operating within the U.S., and exercise comparable oversight functions.

Additionally, there are two further oversight modifications:

• Site Visits:

  The regulations will solidify USCIS's capability to conduct site visits and if access is denied, to rescind H-1B petitions.

• Rules Targeting ICCs

  In terms of staffing company reforms (the so-called “ICC” or “Indian Consultant Companies” or known as “Desi Consultancy” ), when an H-1B worker serves as a contractor, the role at the third-party company becomes the primary determinant for the "specialty occupation" classification.

Benefits and Flexibilities

The DHS has proposed several changes to enhance the benefits and flexibilities of the H-1B program:

• Cap Exemptions Expansion

  There's a proposal to further expand cap exemptions for nonprofits and university research departments, especially if research is considered a "fundamental activity."

• Employment Flexibility

  Even if individuals are not directly employed by the aforementioned organizations, they can still be eligible for cap exemptions if they work for these organizations.

• F-1 Status and EADs Extension

  For those on STEM OPT, the DHS proposes to automatically extend their F-1 status and Employment Authorization Documents (EADs) through April 1 instead of the current October 1. This will facilitate a smoother transition from OPT to H-1B.

• Start Dates on Cap-Subject Petitions

  The regulations will be updated to reflect the current policy that allows start dates on Cap-subject petitions to be after October 1.

Conclusion

The proposed changes to the H-1B visa program reflect the U.S. government's commitment to ensuring that the program remains beneficial for all stakeholders involved. By addressing past issues and looking towards a more transparent, flexible, and efficient system, the H-1B program is poised to continue its pivotal role in attracting global talent to the U.S.

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