Proposed New Rules to Impact H-1B Work Visas, Especially the Annual Lottery

By:  Richard Hanus, Esq.

October 22, 2023

In the coming days, U.S. Department of Homeland Security/Citizenship and Immigration Services (“DHS/CIS”) will be publishing a proposed rule that will significantly impact the way U.S. companies and foreign workers vie for a chance at one of 85,000 H-1B visas made available each year. Its implementation is still up in the air, but if the rule takes effect it will likely be in time for the next H-1B visa lottery in early 2024.

First, and most notably, the proposed rule would alter the current visa lottery system by limiting each foreign national looking to be petitioned for an H-1B visa to be entered into the lottery just once.  This is in sharp contrast to how the system worked in years past when a prospective H-1B visa worker had the opportunity to have multiple, usually related, employers submit entries on their behalf and substantially heighten the chances they would be chosen. This led to widespread abuse by companies and foreign workers colluding to game the system with multiple lottery entries, putting themselves at a significant advantage over companies and workers with just a single lottery entry.

Furthermore, with their single registration, the foreign worker registrant will be allowed to include multiple employers as part of their entry, and if their registration is picked, the foreign worker will be able to choose from the multiple employers named in their entry.

Of course, the best remedy for the problem is within reach of our Congress, in the unlikely event the parties can find common ground regarding the indisputable widespread labor shortage our nation faces, along with unnecessary obstacles to legal immigration, especially in the realm of employment based immigration processes.  That is, in light of the massive demand for the limited annual supply of visas, if we merely passed legislation increasing the annual allotment of H-1B visas, the complications and shortcoming of our visa lottery system can be rendered moot.

Back to the new rule:  The proposed provisions will formalize and incorporate into law certain aspects of current DHS/CIS policy allowing employers greater flexibility in how they assign a given H-1B visa employee to temporarily move to a new or short term work location.

The proposed rule will also seek codify a policy of expanding of deference in adjudications when it comes to approving subsequent petitions (usually for extension of status) submitted by the same parties and same material facts.

Additionally, the rule looks to relieve some of the harsh technicalities that often play out with regard to the timing of employer H-1B visa petition filings and the impact on a foreign worker’s ability to maintain their legal nonimmigrant status

As a reminder, U.S. companies are eligible to file H-1B visa petitions for foreign nationals with a university degree, or equivalent, to fill a “specialty occupation” within the company that relates to that prospective worker’s educational focus.  A “specialty occupation” is one that typically requires the worker at issue to have attained at least a university degree, and in a field or concentration related to the duties of the offered position.

Finally, the proposals above will not go into effect until after a regulatory review process is completed and in this regard, all developments on this subject will continue to be covered in this blog.