TechServe Submits Comments Opposing Harmful Proposed H-1B Visa Revisions

TechServe Alliance CEO Mark Roberts submitted comments to the Department of Homeland Security (DHS) on its Notice of Proposed Rulemaking (NPRM) to Modernize the H-1B Visa Program.

The long-awaited Proposed Rule includes many positive changes intended to streamline access to essential technology, STEM, and medical professionals and improve the integrity of the visa lottery system. However, other proposals unfairly target the IT and engineering staffing business model.

Roberts informed DHS that TechServe supports the proposed H-1B Registration System’s unique beneficiary selection process and appreciates many of the changes to modernize the H-1B visa program but strongly opposes the specialty occupation changes and the addition of court-invalidated provisions on third-party placements. Roberts stated,

The Biden Administration has thus far supported increased access to international talent to fill critical needs and worker shortages in various industries, including IT and engineering. This NPRM is generally positive but surprisingly includes, almost word for word, egregious proposals from the Trump Administration’s H-1B Visa Program NPRM, “Strengthening the H-1B Nonimmigrant Visa Classification Program,” which was rescinded.

Notably, DHS’s proposed changes embraced stakeholders’ urgent recommendations to change the H-1B visa registration lottery to select unique beneficiaries over registrations; in FY 2023, 83 registrations were filed for one beneficiary, allowing both the beneficiary and the registrant companies to game the system. TechServe supports this proposed change, provided DHS addresses new potential unwanted consequences if multiple registrants could then file petitions for the same selected beneficiary. Because changes are needed before the FY 2025 cap season starts, TechServe urged DHS to bifurcate and finalize changes to the H-1B Registration System and lottery procedures as soon as possible.

At the same time, TechServe strongly opposed changes to the definitions of specialty occupation, the addition of bona fide job requirements, and new rules on third-party placements.

• The updates to “Specialty Occupation” definitions and requirements are particularly problematic as limiting access to H-1B visas. TechServe joined a diverse group of commenters, including chambers of commerce, universities, and immigration lawyers, calling for changes to remove language restricting H-1B specialty occupation qualifications to specific degrees or specialties.
• The Proposed Rule would also add a section to the CFR to codify a 2000 court decision that attempts to distinguish between an H-1B worker providing services to a client to complete a project and where a worker is “staffed” at a third-party company. Roberts strongly opposed this provision, noting:

• “DHS/USCIS attempts to create a distinction where there is often no difference in the work being performed . . .. The fundamental and only question should be whether the petitioner is performing work that satisfies the specialty occupation requirement. Accordingly, we urge DHS/USCIS to remove any language applying a different standard for third-party staffing business model.”

• TechServe urged DHS to delete the bona fide job offer provisions, merely repackaged policies previously overturned by courts as conflicting with the statute.

TechServe’s Government Affairs Team will continue to follow developments as DHS moves to finalize the Proposed Rule. We expect the H-1B visa registration system provisions to be finalized separately in time for the FY 2025 lottery. We also expect other groups to file suit if many TechServe-opposed provisions are included in a final rule. In the meantime, please email us if you have any questions.