With a potential change in administration on the horizon, employers may be wondering if any shifts in immigration-related policies could affect their ability to onboard and retain international personnel. Prior to any possible changes in January 2025, the Biden Administration has indicated its goals over the next 6 months for revision of workplace immigration processes benefitting employers, including modifications of the H-1B visa program and a proposed rule to expand the list of Schedule A list of occupations.
Changes to the H-1B Program
In October of 2023, USCIS published a proposed rule that proposed several changes to the H-1B program which would benefit employers, including, among others:
Revising the regulatory definition and criteria for a ‘‘specialty occupation” to allow employers the flexibility to attract and hire candidates well-suited to available positions based on their skillset in an increasingly skills-based hiring culture;
Clarifying USCIS’s deference policy to state that adjudicators should generally defer to a prior determination involving the same parties and underlying facts;
Modernizing the definition of employers exempt from the H-1B cap to create more flexibility for nonprofit and governmental research organizations; and
Providing greater flexibilities for ongoing work authorization, such as automatically extending the duration of F–1 status until April 1 of the relevant fiscal year, rather than October 1 of the same fiscal year, to avoid disruptions in lawful status and employment authorization for F–1 students changing status to H–1B.
At the time of publication, USCIS indicated that more than one final rule may come from this proposal, which appears to be likely, as employers have already seen the anti-fraud provisions regarding the H-1B cap registration process in action earlier this year during H-1B cap registration season.
The final rule regarding changes to the H-1B program is lined up for publication in December.
Expanding List of Schedule A Occupations
In December of 2023, the Department of Labor invited employers to comment on DOL’s consideration of revision to the list of Schedule A occupations to include STEM and other non-STEM occupations that are experiencing labor shortages, consistent with requirements of the Immigration and Nationality Act.
Adding positions to the list of Schedule A occupations would benefit employers by increasing their odds of being able to hire nationals in certified shortage occupations, saving them time and money. Employers hiring personnel in Schedule A occupations can forego several costly and time-intensive processes, including 1) testing the U.S. labor market; and 2) filing a PERM 9089 Labor Certification Application with DOL prior to filing the I-140 Immigrant Petition.
Currently, the only occupations listed in Schedule A are divided into two groups:
Group I consists of physical therapists and professional nurses; and
Group II consists of occupations that require foreign workers to possess exceptional ability in the sciences, arts, or performing arts.
However, DOL has indicated that anecdotal evidence and industry research suggest that economic and labor market conditions have changed and created greater labor shortages for certain industries and occupations relying on foreign workers and various visa programs, especially in the area of STEM occupations.
DOL hopes to finalize its review of the public comments received in response to this invitation to the public by August.
Looking Forward to the Future
Over the past year, employers have been benefitted by positive change made by USCIS that effect the hiring and onboarding process, including the ability to remotely examine employees’ documents during completion of the I-9 for eligible employers, the ability to quickly and conveniently file more petitions online with USCIS, and increased periods of automatically extended work authorization for certain applicants renewing their employment authorization documents.
Regardless of any potential changes to immigration-related processes for employers that may accompany a change in political administration, employers should be encouraged to take advantage of the opportunity to seek out and hire qualified international personnel. To learn more about the employer-driven H-1B process or green card process, please visit Get Trained | cici (usimmigrationcompliance.com).
Hadley Bybee
Mdivani Business Immigration Lawyer
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