Big Changes in the H-1B Front

Erick Widman

Employers and foreign workers who have filed at least one H-1B visa petition in the past few years are all too familiar with the hectic “H-1B cap filing season” which comes on the first week of April every year. H-1B visa is a popular choice for U.S. companies seeking to hire talented foreign professionals in specialized occupations such as engineers, scientists, physicians, lawyers, architects, and accountants. Despite being a highly sought after visa, the number of H-1B visas available each year is limited to 65,000 each year with an additional 20,000 allocated to foreign nationals holding a master’s degree or higher from U.S. universities. Since 2014, the USCIS has consistently received more than 100,000, sometimes more than 200,000, of H-1B visa petitions each year. This created a lottery-based system where the USCIS randomly selects the allocated number of H-1B visa petitions for that year and simply returns all the petitions that were not selected to the employer.

Under the current system, an employer must prepare and file a complete H-1B petition along with the certified Labor Condition Application (LCA) from the U.S. Department of Labor as soon as the quota opens on April 1 of each year even though there is at least a two-to-one chance that the petition will not be selected for the lottery and all the paperwork done will go to waste. Recognizing this issue, the Department of Homeland Security recently announced a significant change in how it will accept and process H-1B visa petitions that are subject to the annual cap.

On December 3, 2018, the Department of Homeland Security (DHS) published a new rule that would require employers seeking to file H-1B cap-subject petitions to register electronically with USCIS during a designated registration period. That is, instead of having the employer submit a complete H-1B visa petition to the USCIS in April in order to have a chance with the lottery, the USCIS will now require the employer who wish to hire cap-subject H-1B workers to complete an electronic registration with just some basic information about the petitioner and beneficiary, such as the employer’s name, employer identification number, mailing address, beneficiary’s name, country of citizenship, passport number, and whether the beneficiary has obtained a master’s or higher degree from a U.S. institution of higher education. The USCIS will likely receive more registrations that the H-1B visa numbers available on the first day, just as it does under the current system, so the USCIS will conduct a random selection among the registered applicants and notify them.

Another significant change under the proposed rule is that the USCIS will reserve the order by which it selects H-1B petitions under the regular H-1B cap and the 20,000 exemption for beneficiaries with a U.S. Master’s degree. According to the new proposed rule, the advanced degree holders will go through the regular H-1B visa lottery of 65,000 and those not selected through this first lottery will get a second chance to compete among the 20,000 cap number reserved for them. This, in a nutshell, gives better odds to the U.S. advanced degree holders to be selected in the H-1B visa lottery compared to the regular cap applicants.

The Department of Homeland has just finished accepting public feedback and comments on this proposed rule. It is unclear at this point when the USCIS will be able to finalize and implement the proposed registration system. With the H-1B cap season for FY 2020 approaching in just a couple months, it is unrealistic and unreasonable to start such a drastic change that would force both the H-1B employers and beneficiaries to prepare for two separate filing systems. Moreover, if this electronic filing system for H-1B visa is adopted in April of 2019, the USCIS has to guarantee at least another 60 days for the selected employers to prepare and file their H-1B petitions which will push out the actual filing date of H-1B cap petitions to June or possibly July. The USCIS is already having difficulties adjudicating all the H-1B cap petitions filed promptly on April 1 each in time before the employment starting date on October 1. Unless the USCIS restores premium processing for all cap-subject H-1B visa petitions, we can easily foresee even further delays of H-1B adjudications at the expense of U.S. employers and the H-1B beneficiaries.

USCIS acknowledged that it might not be able to finalize the regulation and start the new system for this year, but it has not ruled out the possibility. Since electronic registration can be done in a relatively shorter amount of time, we encourage employers to continue preparing their H-1B visa petitions as usual for April 1 filing. Passage Immigration Law will continue to monitor the rulemaking process and the final announcement from the Department of Homeland Security and post news of the final implementation of the rule.

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