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  • Matthew Kolodziej

Proposed H-1B Process Changes and How They May Affect Employers and Foreign Nationals

On November 30 the U.S. Department of Homeland Security announced some major proposed changes to the way that the H-1B visa lottery may work in 2019, causing considerable speculation and confusion among U.S. employers and foreign workers considering applying for cap-subject H-1B visas. If these changes are implemented in time for the fiscal year 2020 H-1B cap filing period, which starts April 1, 2019, employers would be required to register electronically during a prescribed registration period. USCIS would then conduct the H-1B lottery selection from these registered applicants. Those that are selected would be notified that they are eligible to apply for a cap-subject H-1B visa during a specified filing period that would last at least 60 days. The electronic registration period would begin at least two weeks before the first day that the H-1B filing period opens each fiscal year, which is normally April 1st, and it would remain open for at least two weeks.

There would be no government fee for the electronic registration and it may require the following information: employer name, FEIN, and address; employer’s representative’s name, title, and contact information; and the H-1B applicant’s name, date of birth, country of birth and citizenship, gender, passport number, and whether the applicant has obtained a graduate degree from a U.S. institution. Employers would attest that they intend to file an H-1B petition for the H-1B position. Only one registration could be submitted per employer for each H-1B applicant.

The second major change proposed would change how the H-1B lottery is conducted for holders of advanced degrees from U.S. institutions. Two lotteries are conducted each year, one for the 65,000 visas allocated to all visa applicants and another for the additional 20,000 that are available to those with an advanced degree from a U.S. school. The order of these lotteries would be reversed, and count all applicants toward the H-1B cap first, and then when a sufficient number have been selected, then the agency would select the applicants for the advanced degree cap. It is estimated that this process would result in approximately 16% more visas for applicants with a U.S. graduate degree.

Note however that it appears unlikely that USCIS will have completed the rulemaking and processing changes in time for this year’s H-1B cap season for all or part of the changes proposed. The agency is required to allow a 30-day regulatory notice and comment period and then address any concerns raised by the public about the proposed changes. Then the new system will likely require extensive technical user testing. USCIS recognizes that the changes may not be ready in time and in that eventuality H-1B cap petitions would be accepted as normal on April 1st. It is therefore highly recommended that employers plan to prepare complete applications for all potential H-1B employees as normal, while waiting for a decision to be made about the changes to be implemented.

The proposed rules and the uncertainty surrounding them so close to the filing period starting April 1st, 2019 mean that U.S. employers will likely need to continue to prepare for filing complete H-1B petitions as normal while also anticipating the possible change in procedures. Further, there is a concern that employers will be incentivized to file as many electronic registrations as possible, even for employees that may ultimately not apply for the H-1B visa or be qualified for one, potentially reducing the number of visas available for applications that are eventually filed and approved for bona fide H-1B visa employees. It should also be noted that these regulatory changes may not be authorized by the law as it now stands, which specifies the order in which the regular cap and master’s degree cap lotteries should be performed. This adds additional uncertainty to the legality of the proposed changes.

Employers and H-1B visa applicants should consult with attorneys and prepare complete visa applications as early as possible, as they normally would, while preparing for the eventual possibility that electronic registration may be possible two weeks before the filing date of April 1st, 2019. Jia Law Group will notify our clients of updates as they are announced.


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