Biden admin’s spring agenda: Modernising H-1B visa program, revising wage methodology
Biden admin’s spring agenda: Modernising H-1B visa program, revising wage methodology
MUMBAI: When it comes to the proposed course of action as regards the H-1B program, the first ever bi-annual agenda to be rolled out by the Biden administration is a mixed bag.
The Department of Homeland Security (DHS), in its spring agenda released on Friday, proposes to revise the regulations relating to ‘employer-employee relationship’. It also intends to implement new requirements and guidelines for site visits including in connection with applications filed by employers sponsoring H-1B workers, where there is an indication of fraud.
According to immigration experts, it is unclear what a revision in regulations relating to ‘employer-employee relationship’ could entail. However, they point out that the draft proposals in this regard will be issued by December and it will undergo a proper process of rule-making, which includes inviting stakeholder comments and vetting the same, prior to finalisation. Thus, it is not likely to adversely impact genuine business needs.
The action plan also calls for a revision in the methodology for determining the prevailing wage levels for H-1B and green card holders. As TOI had reported earlier, one of the action points in US President Joe Biden’s pre-election manifesto- to ‘Curb exploitation of foreign workers, by ensuring that employers cannot hire below the market rate’.
The Biden administration has sought public comments on the best methodology and data to use in updating the minimum wage requirements for H-1B visa and green card holders. The draft proposal on wage methodology will be released by November 2021 – it will be several months before it is finalised. Further, there will also be a transitional phase to the new wage levels.
At the same time, the scope for premium processing, which currently is largely relegated to processing of H-1B visas is expected to be widened to cover other visa applications and filings.
On the flip side, DHS also proposes to provide flexibility on employment start dates (in limited circumstances) and also address the ‘cap-gap’ issued faced by international students.
In the backdrop of the spring agenda, Doug Rand, co-founder, Boundless Immigration, a technology service entity in the immigration space states, “Unlike the Trump-era sledgehammer against H-1Bs and international students, Biden's DHS appears to be pursuing a balanced approach.”
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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. International students are eligible for a 12-month (three years for STEM students) optional practical training (OPT) under which they can work in the US. In many cases, the organizations where they are undergoing OPT sponsor them for the H-1B work visa. 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. Many students have lost out, because of this and the spring agenda indicates that the cap-gap issue will be addressed.
