MUMBAI: The US Department of Homeland Security (DHS) in its recently rolled out spring-2022 agenda, has reiterated its plan to modernise the H-1B program, make it more flexible for start-ups and usher in checks to mitigate any misuse.
In a new addition to its regulatory agenda, DHS plans to issue a proposed rule to improve processing of Form I-485 (adjustment of status applications, which are filed by those in the US, such as H-1B workers who are transiting to a green card). A reduction in processing time will be of great help to the Indian diaspora. This proposed draft rule is currently slated for publication in May 2023.
Bi-annually, various government agencies indicate their immediate and long-term action plans. Immigration related action plans are typically outlined by agencies such as the DHS, the Department of Labour (DOL) and the Department of State (DOS).
As regards the H-1B program, DHS continues to pursue a proposed regulation to amend the definition of the employer-employee relationship and provide flexibility for start-up entrepreneurs. It also contains a proposed plan of action to implement new requirements and guidelines for site visits – including in connection with applicants filed by sponsoring employers whose basic business information cannot be validated through commercially available data. The H-1B registration process is also to be bolstered to mitigate misuse and fraud.
It is unclear what a revision in regulations relating to ‘employer-employee relationship’ could entail. From a plain reading of the proposed course of action, some leeway is expected to enable start-ups to easily hire H-1B workers.
During the Trump regime, IT service companies whose H-1B employees were placed at client sites were weighed under an onerous burden of proof and documentation requirements such as providing detailed customer contracts and itineraries of employees. This led to processing delays and a spike in denial of H-1B visa applications. The policy was set aside by a US court.
“DHS also intends to clarify when a material change to H-1B employment occurs, necessitating an amended petition (application). Notification requirements relating to worksite location changes are also expected to be streamlined, explains Mitch Wexler, partner at Fragomen, a global immigration law firm. Proposals relating to the H-1B modernisation program were originally slated for publication in December 2021, but have been rescheduled for May 2023. It takes several months from the date of publication, for a proposal to be finally implemented. In the process of rule-making, public comments are also invited and duly vetted.
A Trump-era proposal to allocate H-1B cap visas based on wages, with priority given to highest wage earners has been put on the backburner. However, DOL intends to move ahead with a rule to raise the prevailing wage rates for H-1B and green card holders. One of the action points in US President Joe Biden
’s pre-election manifesto was to ‘Curb exploitation of foreign workers, by ensuring that employers cannot hire below the market rate’.
“A final prevailing wage rule had been scheduled to take effect on November 14, 2022. However, last year a federal court vacated the Trump-era regulation, with the DOL’s consent. As expected, DOL is promulgating a new prevailing wage regulation, taking into consideration the feedback it received earlier. in response to a request for public comments. Publication of the draft new proposal is currently scheduled for October, 2022,” explains Wexler.