A recent proposal under the Workforce Innovation and Skills Act (WISA) aims to modify certain aspects of H-1B visa processing and employer responsibilities. While the proposal is still under review and not yet enacted, it signals potential changes that could affect both employers and beneficiaries, especially among Chinese corporate clients and high-net-worth investors relying on H-1B for their US employment.

Attorney Insight
One of the key elements in the WISA proposal is enhanced verification requirements for employers filing H-1B petitions. This may include stricter documentation on recruitment efforts and wage attestations, beyond current Labor Condition Application (LCA) obligations under 20 CFR §655.731. From our experience handling over 100 H-1B cases annually, insufficient proof of bona fide employment or wage compliance is a leading cause of Requests for Evidence (RFE) and denials. The new proposal could raise the evidentiary bar, making pre-filing preparation more critical.

For our Chinese corporate executive clients using L-1 and EB-1C pathways, these changes may not directly impact their current petitions but are worth monitoring if they consider H-1B as a secondary option for US assignments or family members. For high-net-worth investors and entrepreneurs, the proposal highlights the importance of solid employer-employee relationships and compliance documentation should they employ H-1B visa holders within their US entities.

Attorney Insight
We recently advised a fintech client whose H-1B petition faced an RFE due to incomplete wage documentation. Applying lessons from this case, we recommend employers immediately review their wage determination process and maintain detailed recruitment records. Specifically, employers should ensure the SOC code selected on Form I-129 matches the job duties precisely, and that prevailing wage determinations are current per the Department of Labor’s Online Wage Library [2 CFR 655.731].
Attorney Insight
Additionally, we suggest H-1B candidates consider alternative visa categories such as O-1 or L-1 where appropriate. For example, senior managers qualifying for L-1A or individuals with extraordinary ability for O-1 may avoid the more burdensome compliance regime proposed under WISA for H-1B. Our firm has successfully transitioned several clients from H-1B to L-1 or O-1 status in recent years, reducing processing uncertainty.

Action items based on the current proposal include: 1) Employers should conduct an immediate audit of their H-1B petition documentation, focusing on wage and recruitment evidence; 2) Candidates and employers should evaluate whether alternative visa categories better fit their profile and timing needs. Since WISA is not yet law, early preparation can mitigate future risks and delays.

While the final details and implementation timeline of WISA remain unclear, proactive compliance and strategic visa planning are essential. We will continue monitoring official updates from USCIS and the Department of Labor to provide timely guidance.

What this means for you: If you are an H-1B employer or beneficiary, start reviewing your documentation now and explore backup visa options. For executives and investors, maintain flexible strategies incorporating L-1 and O-1 pathways to navigate potential regulatory shifts.