The US department of homeland security (DHS) in its spring 2022 agenda has reiterated its plan to modernise the H-1B programme by making it more flexible for startups and ushering in checks to mitigate any misuse. In an addition to its regulatory agenda, the DHS plans to issue a proposed rule to improve the processing of Form I-485 (adjustment of status applications, which are filed by H-1B workers transiting to a green card). A reduction in processing time will benefit the Indian diaspora.
As regards the H-1B programme, the DHS continues to pursue a proposed regulation to amend the definition of the employer-employee relationship and provide flexibility for start-up entrepreneurs. It also contains a proposed plan of action to implement new guidelines for site visits, including for applicants sponsored by employers whose basic business information cannot be validated through commercially available data.
The H-1B registration process is also to be bolstered to mitigate misuse and fraud. It is unclear what a revision in rules relating to the ’employer-employee relationship’ could entail. From a plain reading of the proposed course of action, some leeway is expected to enable startups to easily hire H-1B workers. Proposals relating to the H-1B modernisation were originally slated for publication in December 2021, but have been rescheduled for May 2023. It takes several months from the date of publication for a proposal to be finally implemented. Public comments are also invited and duly vetted.
A Trump-era proposal to cap H-1B visas based on wages, with priority given to the highest wage earners has been put on the backburner. However, the department of labour intends to move ahead with a rule to raise prevailing wage rates for H-1B and green card holders. “Publication of the draft proposal is currently scheduled for October 2022,” said Mitch Wexler, partner at Fragomen, a global immigration law firm.