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US agencies defer roll out of H-1B modernization program which would redefine specialty occupation


MUMBAI: The US Citizenship and Immigration Services (USCIS) has delayed to Dec 2024, its publication of a ‘final rule’ implementing the second phase of the H-1B program modernization plan. The draft rules released last Oct were viewed as challenging for US employers that sponsor H-1B workers.
Immigration experts view that the election outcome will have a significant impact in the immigration policy stratosphere, including policies relating to work visas.
The second phase is expected to revise the definition of an H-1B specialty occupation, broaden the site visit programs by relevant authorities and on the positive side enhance cap-gap protection for international students.
The first phase of the H-1B modernization rule has already been implemented – the lottery selection process is now beneficiary centric. All beneficiaries (employees that are being sponsored for an H-1B visa) are entered into the lottery process just once.
The H-1B visa program allows US employers to employ foreign workers in ‘specialty occupations’. Current immigration laws define it to mean ‘occupations that require highly specialized knowledge and a bachelor’s or higher degree in the specific specialty, or its equivalent’.
Draft rules released last October stated that a job position may allow a range of degrees, although there must be a direct relationship between the required degree field(s) and the duties of the position.
Immigration attorneys viewed this as a mixed bag, as the sponsoring employer would have the onus of establishing how each degree of the beneficiary relates to the job position. It was feared that USCIS would seek more evidence or reject the H-1B visa application. Another challenge was perceived as in case of deputation of H-1B workers to client sites, the draft rules stated that the requirement of the client would determine whether the job position is a qualifying specialty occupation.
The second modernization phase is also expected to offer cap gap protection. International students (F1 visa holders) on completion of their qualification are eligible for an optional practical training (OPT). This is for one year, but students hailing from the STEM (science, technology, engineering and mathematics) field of study get an additional extended tenure of two years.
Several individuals undergoing OPT are sponsored for the H-1B work visa by the same organization. The term cap-gap refers to the period between the time an international student’s F-1 status ends and the H-1B status begins.
At present, if the H-1B application is filed in time, they can continue working beyond the expiry date on their OPT employment authorization document, while waiting for the start date (October 1) of an approved or pending H-1B application. However, if the application is not processed by October 1, the student must stop working as of this date. The draft proposal had proposed to extend the cap-gap period. As per the Open Doors Report, for the year 2022-23, 69,000 students were engaged in OPT programs. However, the results of the elections will determine the fate of the OPT program, state immigration attorneys.

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