The Shifting Landscape of H-1B Visas: Navigating Proposed Changes
Authored by Wendy R. Barlow, Esq.
For years, the H-1B visa program has been a cornerstone for U.S. employers seeking to fill specialty occupation roles with skilled foreign talent. The program’s annual cap and random lottery system have, however, created significant uncertainty for businesses and prospective employees alike. Recent proposals from the Department of Homeland Security (DHS) signal a major potential overhaul, and as a result, employers need to be prepared for what could be a significant shift in the H-1B landscape.
The Move from Lottery to Wage-Based Selection
The most significant proposed change is the move away from the current random lottery system to a weighted, wage-based selection process. The goal, according to DHS, is to prioritize high-skilled and high-paid foreign workers.
How it would work: Instead of a single entry for each unique beneficiary, the proposed system would give H-1B registrations multiple entries in the lottery based on the offered wage level. The system uses the Occupational Employment and Wage Statistics (OEWS) wage classifications, with higher levels receiving more entries:
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Level IV (top tier): Four entries
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Level III: Three entries
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Level II: Two entries
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Level I (bottom tier): One entry
While each beneficiary would still only be selected once, this weighted approach would significantly increase the odds for higher-paid positions while decreasing the chances for lower-paid roles. This could have a substantial impact on the talent pool available to employers, particularly for entry-level positions or roles at smaller and start-up companies that may not be able to offer top-tier salaries.
New Fees and Other Integrity Measures
In addition to the changes in the selection process, other proposals and new rules are being introduced to reform the program:
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A New Fee: A presidential proclamation has introduced a new $100,000 fee for new H-1B petitions. This is a one-time fee that would apply to new H-1B cap filings, not to renewals or current visa holders. This substantial cost could prove prohibitive for many businesses, particularly small and medium-sized enterprises.
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Focus on Prevailing Wages: The Department of Labor has been directed to revise and raise prevailing wage levels, further increasing the cost of hiring H-1B workers.
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Combating Fraud: In a previous rule change, USCIS moved to a “beneficiary-centric” selection process, giving each individual the same chance of selection regardless of how many registrations are submitted on their behalf. The new proposed rules would continue to strengthen integrity measures by codifying USCIS’s authority to conduct site visits and deny or revoke petitions where fraud is suspected.
What Employers Need to Do Now
These proposed changes are still in the notice and comment period, which means they are not yet final. However, given the potential for significant disruption, it is crucial for employers to be proactive and prepare for a variety of scenarios.
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Educate Your Teams: Ensure that your HR and management teams understand the proposed changes and their potential impact on your business.
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Evaluate Workforce Strategy: Consider how these changes might affect your ability to recruit and retain foreign talent. It may be necessary to re-evaluate staffing plans, explore alternative visa options, or adjust compensation strategies.
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Provide Input: The public comment period is an opportunity to provide feedback to DHS on the proposed rules. Companies and organizations can use this time to voice their concerns and perspectives.
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Consult with Legal Counsel: The complex and evolving nature of immigration law makes it essential to work with experienced legal counsel. Cohen, Tucker + Ades is closely monitoring these developments and can provide guidance to help you navigate these proposed changes and ensure your compliance with all regulations.
The H-1B program is in a state of flux. By staying informed and preparing for these potential changes, employers can better position themselves to secure the talent they need to remain competitive in a global marketplace.
How Can Cohen, Tucker + Ades Help Your Company Navigate These Changes?
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Provide Legal Counsel and Interpretation: The new rules and proposed changes are complex and often have gray areas. Our experienced Team at Cohen, Tucker + Ades can provide expert legal analysis to interpret the rules and their potential impact on your company’s specific situation. This includes clarifying who is subject to new fees, what “national interest” exemptions might apply, and how the new wage-based system could affect different roles.
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Strategic Workforce Planning: With a new wage-based system, a company’s old hiring strategies may no longer be effective. We can work with your businesses to develop new, compliant strategies including:
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Reassessing compensation structures to align with the new wage levels.
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Evaluating and exploring alternative visa options (like O-1 visas for individuals of extraordinary ability, or L-1 visas for intracompany transfers) that might be a better fit for certain employees.
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Developing a long-term plan for both existing and prospective foreign talent.
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Ensuring Compliance and Mitigating Risk: The new rules emphasize program integrity and give USCIS more authority to conduct site visits and scrutinize petitions. Cohen, Tucker + Ades can help companies:
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Conduct internal audits to ensure their H-1B filings are accurate and free from discrepancies.
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Prepare for and manage potential site visits from government agencies.
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Ensure all new fees and documentation requirements are met to avoid delays, denials, or even fraud allegations.
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Representing Clients in Legal Challenges and Appeals: As with any major policy change, it is likely that these new rules will face legal challenges. Cohen, Tucker + Ades, with a strong background in federal immigration law and litigation, can represent clients in cases where a petition is denied or delayed. They can also provide guidance on filing appeals or motions to challenge adverse decisions by USCIS.
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Staying Informed and Providing Updates: Cohen, Tucker + Ades is continuously monitoring legislative and regulatory developments so we can provide clients with timely and accurate information. We can help companies understand new guidance as it is released, allowing them to adjust their strategies in real-time.
By partnering with our experienced Team, companies can protect their investments, minimize legal risks, and continue to attract and retain the skilled global talent that is critical to their success.
This blog post is for informational purposes only and does not constitute legal advice. Please consult with an immigration attorney for advice on your specific situation.
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