Among the positive moves, the Dept of Homeland & Security (DHS) extended F1 visa validity for students seeking jobs on OPT by one year which will significantly ease the burden, immigration consultants and policy experts said.
“We are supportive of foreign nationals transitioning from a student visa to an H-1B wherein they will be able to extend their postgraduation work permit to a year after they’ve filed their H-1B petition to prevent gaps in employment,” said Shivendra Singh, vice president – global trade development at India’s apex technology body Nasscom.
Previously, the ‘cap-gap’ rule allowed F1 extension after OPT expiration date until October 1, which is the start of the fiscal year, only for petitioners whose H-1B applications were approved or pending, said Poorvi Chothani founder and managing partner of LawQuest, an immigration law firm headquartered in Florida.
“This has now been extended to April 1 when the USCIS begins accepting H-1B cap-subject petitions for the new fiscal year, easing pressure on students,” she said.
DHS also relaxed the educational eligibility for H1B applicants. For instance, a data analyst must have a degree in data science or related fields. This will lend greater flexibility to job seekers in STEM, AI, and emerging roles.
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“However, burden is on the petitioner to explain how the degree(s) is/are directly related. More documentation may be required in H-1B petition filings as a result of the proposed rule,” said Singh.However, the new rules could be a sore point for Indian IT companies placing professionals on client sites in the US. DHS made it mandatory for consulting companies to justify the job role of the third party.
For instance, if a company has hired an H1B candidate to work on a bank’s work location in New York for 1.5 years, the bank’s job role will be scrutinised for judging the eligibility of H1B and not that of the IT company.
This means increased documentation, complexities and little flexibility to hire professionals with varied skill sets which is important for consulting companies.
“Having a rule where it is third party’s degree requirement and not petitioning employer’s hiring requirement that will determine if it is a specialty occupation and the H-1B worker being a part of third party organizational hierarchy will make it difficult and increase the petitioner’s administrative burden and lead to greater RFEs (Request for evidence),” said Singh.
Among other notable changes, site visits to verify the physical presence of the H1B applicant at work have been made legally binding. Founders or business owners who own more than 50% equity in a company can self-petition for H1B and their spouses are also allowed to work. Roles tied to research institutes are cap-exempt. Startups can hire researchers (in AI, healthcare, computer hardware) all year round.
The new changes come into effect January 17 (three days before the new Trump administration takes over the Oval Office) and will impact the upcoming H1B ballot in March as the new administration cannot simply overwrite the executive order, LawQuest’s Chothani said.
“There’s always a risk of challenging the order in Court, but, administratively, any changes will have to go through a consultation process. So we don’t see any near-term uncertainties in validity of the new rules,” she explained.
“President Biden would not waste his last days in office to bring something which can be overturned that easily,” said Russell A. Stamets, partner at Delhi-based business law firm Circle of Counsels.
“I feel the new rules better reward people who comply and more punishing for those who don’t. With increased scrutiny, the process will be faster for the DHS to skim through applications and replace dodgy applications with quality candidates. The 85,000 visa quota would still be awarded, with a greater likelihood that those are genuine visa applicants for legitimate businesses,” he said.
In 2024, the USCIS received 479,953 H1B registrations, of which the eligible ones will enter the upcoming lottery ballot in March 2025. H-1B visa holders are primarily from India. In 2023, Indians made up 72.3% of the 386,000 H-1B visas issued.
However, India’s top seven IT services companies including TCS, Wipro, Infosys, HCL have brought down their dependency on H1B employees by 56% in the last eight years. In the same period, use of the US’s premier work visa soared by 189% at Amazon, Google, Meta, Microsoft and Apple combined, an ET analysis showed.
