USCIS Proposes Changes to H-1B Visa Lottery

Employers should begin preparing next year’s filings as usual, experts say

Roy Maurer By Roy Maurer December 5, 2018
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​U.S. Citizenship and Immigration Services (USCIS) has proposed changing how each year's limited number of H-1B visa petitions are chosen.

The proposal would require employers to register online to be randomly selected before they submit visa petitions. It also would award visas to more people who have advanced degrees earned in the U.S. The agency has proposed having the new system finalized and in place for the fiscal year (FY) 2020 filing deadline on April 1, 2019.

The rule "will dramatically change the way the H-1B application process works," said Greg Siskind, founding partner of Memphis-based law firm Siskind Susser.

The H-1B program allows companies in the United States to temporarily employ foreign workers who have specialized knowledge and at least a bachelor's degree. It is the most popular visa category for employers to obtain work authorization and is available for a variety of professional positions, said Catherine Betts, an attorney in the Washington, D.C., office of Faegre Baker Daniels.

The number of new visas granted through the program is capped at 65,000 a year, with an extra 20,000 visa slots allotted for graduates from a U.S. college or university with a master's degree or higher. But demand for H-1Bs in recent years has been double and even nearly triple the cap. USCIS has to conduct a lottery to allocate the visas.

Now, all employers must complete lengthy applications for the visas, though most of them aren't selected in the USCIS lottery. The proposed rule calls for employers to instead submit a simple, free, online registration form for each prospective employee in need of a visa. USCIS will randomly select enough registrations to meet the cap. Only those employers with selected registrations would need to prepare and submit full petitions.

"The proposed rule is intended to streamline the process for the identification and selection of H-1B beneficiaries and is expected to reduce the cost for employers since petitions will not need to be filed unless the beneficiary is selected during the registration period," Betts said.

USCIS estimates that employers would save between $47.3 million and $75.5 million annually under the proposed changes.

"Overall, the cost savings for employers could be enormous," said Anantha Paruthipattu, founder and principal attorney at Paruthipattu Law Firm, based in Herndon, Va. He added that the best way to allocate H-1B visas would be raising the cap and doing away with the lottery entirely, but "if you're going to have a lottery system, this is an improvement."

Tahmina Watson, an immigration attorney and owner of Seattle-based Watson Immigration Law, said that once up and running, the system will be more efficient for employers and the government, and workers will benefit from knowing immediately whether they've been selected or not. 

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The Proposed Application Process

Employers would be given at least 30 days of advance notice before the annual registration period begins, lasting for a minimum of 14 calendar days before April 1, the traditional start of cap-filing season. Companies would be required to electronically register through the USCIS website during that time.

"USCIS says that the registration form will ask for basic information about the employer and the worker's biographical information and whether he or she has a U.S. advanced degree," Paruthipattu said. "We're still waiting to see what is on that form, but we all know from experience that even simple forms can be difficult to implement."

Employers would have at least 60 days from being notified that their registration was chosen to obtain a labor certification from the Department of Labor and prepare an H-1B petition for filing. "USCIS has proposed having multiple filing periods and staggering them so that not all petitions are submitted within the same timeframe," Paruthipattu said. Separate filing windows would help the agency manage the surge of petitions it receives. Some employers would be assigned a filing window between April 1 and May 31, for example, while others would have a filing window between May 1 and June 30, in effect shifting the preparation phase for employers from the first quarter of the year to the spring and summer.

Rushing the Rule May Harm Its Intent

Employers and the attorneys tasked with preparing their H-1B-cap petitions are concerned that trying to fast-track the changes before the FY 2020 deadline on April 1, 2019, will be too disruptive.

The 30-day public comment period ends Jan. 2, 2019. The agency must analyze all comments before issuing a final rule, a process that could take months. But according to the proposal, the registration process must be opened by mid-March, and advance notice given to the public 30 days before that.

"They also have to develop an electronic system that works," Watson said. "There's not enough time between now and the deadline to issue and put in place a system without rushing it."

The agency provided itself a way out of this problem by including a clause in the proposed rule that if there isn't enough time to create the registration system for the FY 2020 cap season, it would likely suspend the registration requirement until the following year.

Experts recommend organizations continue to work on H-1B cap preparation as usual. "Given all the uncertainty, I would advise employers to prepare cases as if the rule will not be ready this season," Watson said. "Employers should plan for the possibility that they will need to submit a full H-1B-cap petition and supporting evidence for each worker, as in years past. Then if the rule does go into effect, they are still meeting all of the requirements."

Even if the proposed system is implemented in time, advance preparation will be necessary to assess each case's eligibility before registrations are submitted. "Employers must still identify and screen potential visa recipients for eligibility before they register," Paruthipattu said. "It can't be done after being selected. The employer's part in reviewing and screening remains. That has not changed."

Advanced-Degree Holders Favored

USCIS also plans to reverse the order by which H-1B petitions under the cap are selected, in an attempt to increase the proportion of H-1B visas that go to advanced-degree holders from U.S. schools. Currently, the government runs a lottery for advanced-degree holders who qualify under the 20,000-visa cap first. Those who aren't chosen then get a second chance with the other H-1B petitions under the larger 65,000-visa cap.

Instead of conducting the advanced-degree lottery first, USCIS is proposing to conduct the lottery for 65,000 visas with all advanced-degree earners included, then to put the remaining applicants with U.S. master's degrees or higher into the separate lottery for 20,000 visas.

"By reversing the order, there will be approximately 20,000 more master's level applicants in the regular lottery, thus improving the odds of those with U.S. master's degrees and higher and reducing the odds of everyone else," Siskind said.

Betts added that the change is in line with the Trump administration's goal to grant H-1B visas to the most-skilled and highest paid foreign national workers, as directed by the April 2017 "Buy American and Hire American" executive order.

USCIS added that this provision will likely be in place for the coming filing season, even if the registration process is delayed another year.

[Visit SHRM's resource page on workplace immigration.]

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