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H-1B visas in 2020: More expensive and more stringent?

The H-1B visa program has already been the subject of some high-profile change. That includes the new electronic registration requirement with $10 fee, its impact on the lottery and reports of ever-increasing application denials. The tumult may not end any time soon.

Two proposed rules could alter the H-1B visa process even further.

Tightening the definition of 'best and brightest'

First, as reported by Bloomberg, U.S. Citizenship and Immigration Services (USCIS) last year published a proposed rule that would alter the definition of specialty occupation for H-1B visas. While the proposal still lacks concrete details, the goal, according to the rule, is to restrict awarded visas to only the "best and brightest foreign nationals."

This change, in many ways, would put into writing the recent behavior of USCIS regarding H-1B visas. If made official through a rule change, it may become harder for employers to mount a legal challenge of a denied visa.

The rule also aims to revise the definition of employment and employer-employee relationship, and could include other requirements meant to "ensure employers pay appropriate wages to H-1B visa holders."

Increasing the application fee

In addition to the above-mentioned rule revisions, H-1B visas may also become more expensive. As part of sweeping changes to immigration fees as a whole, USCIS proposed splitting up Form I-129, which is currently used for a handful of work visas, including H visas, the L-1, the O and the TN.

These visas would each get their own forms and fees. In effect, the H-1B application fee would go from $460 to $560, an increase of 22%.

When these changes might take effect

As of the start of the new year, neither of these rules are officially in place. Both could become a reality, at least in some shape or form, in the months ahead. When exactly that might happen is not yet known.

Assuming the federal government follows through, employers looking to utilize foreign talent through the H-1B visa may face not just higher costs, but less certainty about the success of their application. This highlights the need for businesses to have strong legal support that can help them navigate this new visa landscape.

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