By: Gerald LeMelle

There was much to discourage corporate clients who add talent and bolster their competitiveness by hiring H-1B visa employees. The H-1B Program allows companies and other employers in the United States to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty or its equivalent. In the last four years, several changes to the Program decreased the ability of companies, particularly small and midsized ones, to obtain an H-1B. Last year saw the introduction of new Executive Orders that would have dramatically decreased that ability. The H-1B visa process can quickly become overwhelming, but having a trusted immigration attorney on your side can help alleviate any stress.

To those corporate executives who were discouraged at the prospects of adding to their talent base, the FY 2022 H-1B Program, which begins registration on March 9th, 2021, offers new hope. A number of new decisions in the past three weeks have opened opportunities for small and mid-sized businesses to once again effectively compete for foreign talent.  

Computer programmers can now apply without fear of denial and automatic Requests for Evidence. USCIS has announced the immediate rescission of a 2017 guidance memo that had raised questions about whether computer programmers qualified for H-1B specialty occupation visas and resulted in numerous denials of petitions that had been submitted and discouraged employers from attempting to hire programmers.

Employers hiring entry-level workers will have a chance to hire H-1B’s. The so-called Modification rule that would have prioritized cases based on wage level is under further review, and its effective date has been postponed until at least December 31, 2021. Typically, somewhere between 200,000 and 250,000 applicants are registered by companies for the lottery. The rule, if implemented, would have resulted in only the top 106,000 salaries being selected for review. Employers seeking to hire newly graduated employees would be faced with the tough choice of offering pay grade or budget-busting salaries or not hiring a valued potential employed, many of whom had been trained through an Optional Practical Training Program the company sponsored.  

Spouses of H-1B visa holders no longer need to fear the rescission of the H4 employment authorization. The rule that would have eliminated the H-4 Employment Authorization Document (EAD) Program that gives work authorization to spouses of certain H-1B workers in the Green Card process has been rescinded. Eliminating the H-4 employment authorization discouraged some talented potential applicants whose spouses had careers of their own or who felt that two incomes were necessary. Hiring an experienced immigration attorney can be beneficial when it comes to understanding the latest details regarding H-1B visas.

The requirement that multiple employers would be required to file separate H-1B visa petitions on behalf of one beneficiary if the employee is placed at a third-party site has been rescinded. The rule was introduced and submitted to the Federal Register on January 15th, 2020 but was never published and therefore could be rescinded. The rule would place an enormous burden on the contracting parties and would certainly discourage such arrangements.  

Employers will temporarily be allowed to request a three-year validity period for H-1B petitions where the beneficiary will be placed at a third-party worksite. The October 2020 Strengthening the H-1B Nonimmigrant Visa Classification Program rule had imposed a one-year maximum validity period for any off-site H-1B petition. Because this rule has been published in the Federal Register, it cannot be rescinded, but it has been suspending for 60 days pending review.

Registration for the H-1B FY2022 Program begins on March 9th,2021. A successful H-1B petition will allow the sponsored employee to commence work no sooner than October 1st, 2021. If you don’t register in time, you will have to wait until March 2022 for your next opportunity, with a start date of October 1st, 2022. Given the political hot potato that is immigration law, I highly recommend moving quickly if you wish to take advantage of the opportunity.

If you have any questions about how your company may be affected or take advantage of the new opportunities created for the H-1B Program, do not hesitate to reach out to the immigration lawyers at Dunlap Bennett & Ludwig. To learn how our team can help, contact us by calling (800) 747-9354 or emailing

To learn more about H-1B visas, visit our H-1B Visa Immigration page.

About the Author

Gerald LeMelleGerald LeMelle is a Partner at Dunlap Bennett & Ludwig. He has more than 30 years of experience in immigration law and helps corporations, finance professionals, investors, and startups to achieve their corporate and financial goals through investing money or in talent here in the United States. He specializes in investor and employment-based visas, such as L-I and H-1b, E-2, and EB-5 visas. To learn how Mr. LeMelle can assist you with your legal needs, click here.

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