Scores of Indian professionals seeking a career in the United States (US) are likely to benefit the most as the Government there has announced a new set of rules for H-1B visas that makes it easier for American companies to hire foreign workers with special skill sets. It also facilitates a smoother transition from F-1 student visas to H-1B visas.

This positive development for highly qualified Indian professionals came late Tuesday in Washington by the outgoing Biden administration transferring power. Donald Trump will be the next president of the US after a swearing-in ceremony on January 20.

The updated rule, which takes effect on January 17, 2025, will streamline the approval process, provide greater flexibility for employers to retain top talent, and strengthen the integrity and oversight of the programme. This move is likely to benefit Indians the most.

In recent years, Indians have cornered a lion’s share of H-1B visas. The update would also benefit Indian students on F-1 visas in the US as the new rules seek to help them transition to jobs.

The rule, announced by the Department of Homeland Security (DHS), aims to provide greater flexibility to employers and workers by modernising the definition and criteria for special positions and nonprofit and governmental research organisations that are exempt from the annual statutory limit on H-1B visas. The changes will help US Employers hire as per their business needs and remain competitive in the global marketplace, an official release said.

According to the DHS, the rule also extends certain flexibilities for students on an F-1 visa seeking to change their status to H-1B to avoid disruptions in lawful status and employment authorisation for students holding F-1 visas.

It also will allow US Citizenship and Immigration Services (USCIS) to process applications more quickly for most individuals who had previously been approved for an H1-B visa. It will also allow H1-B visa holders with a controlling interest in the petitioning organisation to be eligible for H-1B status subject to reasonable conditions. The latest move by the outgoing Biden administration builds on its previous efforts to ensure that the labour needs of American businesses are met to reduce undue burden on employers while adhering to all US worker protections under the law.

“American businesses rely on the H-1B visa programme for the recruitment of highly-skilled talent, benefiting communities across the country,” said Secretary of Homeland Security Alejandro N. Mayorkas.

“These improvements to the programme provide employers with greater flexibility to hire global talent, boost our economic competitiveness, and allow highly skilled workers to continue to advance American innovation,” he said.

“The H-1B programme was created by Congress in 1990, and there’s no question it needed to be modernised to support our nation’s growing economy,” said USCIS Director Ur M. Jaddou.

The changes made in the final rule will ensure that US employers can hire highly skilled workers they need to grow and innovate while enhancing the integrity of the programme, he said.

The DHS said the rule also strengthens the programme’s integrity by codifying USCIS’ authority to conduct inspections and impose penalties for failure to comply; requiring that the employer must establish that it has a bona fide position in a speciality occupation available for the worker as of the requested start date.

It clarifies that the Labor Condition Application must support and properly correspond with the H-1B petition; and requires that the petitioner have a legal presence and be subject to legal processes in the courts of the United States.

In order to implement the rule, a new edition of Form I-129, Petition for a Nonimmigrant Worker, will be required for all petitions beginning January 17, 2025, which is the rule’s effective date.

The H-1B visa annual cap is set at 85,000. And for this financial year, the USCIS has announced that they have reached the annual quota. Of these 85,000 H-1B visas, 65,000 are for regular cap and the rest of 20,000 are for the US advanced degree or master’s degree. But many non-profits are exempt from that cap.

H-1B visa holders are primarily from India. In 2023, Indians made up 72.3% of the 386,000 H-1B visas issued. US companies depend on H-1B visas to hire hundreds of thousands of employees each year from countries like India and China.

H-1B visa applications often exceed the annual cap, and visas are awarded through a lottery system. This means many eligible applicants are denied simply due to chance.

However, cap-exempt organisations, such as certain non-profits and government research institutions, can apply for H-1B visas year-round without being limited by the annual cap.