Immigration Update: USCIS Announces Proposed Changes to H-1B Program

Baker Donelson

U.S. Citizenship and Immigration Services (USCIS) published an advance copy of a proposed rule to make significant changes to the selection process for H-1B cap-subject petitions: (1) to electronically register H-1B cap-subject beneficiaries with USCIS during a designated registration period and (2) reverse the order of selection for H-1B cap beneficiaries with a master's or higher degree from a U.S. institution of higher education in relation to other beneficiaries. What would this mean for employers who file H-1B petitions? Here is a recap of the current process and a look at the proposed adjustments to help you understand how the process would change under the new rules.

The Current Process

The H-1B program allows companies in the United States to temporarily employ foreign workers in specialty occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor's or higher degree in the specific specialty, or its equivalent. A congressionally mandated annual H-1B cap of 65,000 generally plus 20,000 for workers with master's degree or higher applies to workers seeking H-1B for the first time. Currently, employers submit complete petitions with fee in April for work that would start in October. When USCIS receives more than enough petitions to reach the cap (accounting for a projected rate of denials), a computer-generated random selection process, or lottery, is used to select the petitions that are counted towards the number of petitions projected as needed to reach the cap. Selected petitions are adjudicated, and all other petitions are rejected.

The Online Preregistration System

According to the proposal, U.S. employers would be able to know if an employee was randomly selected for H-1B processing before filing a Labor Condition Application and full H-1B petition. Employers would register by completing an online form including very limited data about the company, the prospective foreign employee, and the offered position. Employers would file a separate registration for each foreign beneficiary but could file no more than one for any beneficiary.

The registration period would occur at least 14 calendar days before the usual April 1 opening day of cap filing season and would last for at least 14 calendar days. USCIS would select enough to the fill the caps and then select more later if selected employers fail to file timely or become denied, creating the prospect of actually using the full number of slots but potentially with substantial delay for those not initially selected. To try to discourage "gaming" the system, USCIS would have the potential to track how many registrations result in filed petitions and potentially investigate employers who show a pattern of filing registrations for individuals and then failing to submit petitions for registrations selected in the lottery.

This part of the rule is highly controversial and logistically complicated, and USCIS has announced already that it probably could not implement this part for the H-1B cap filing season that is scheduled to start April 1, 2019.

Reversing the Order of Selection

The proposed rule would also change the order in which H-1B petitions are selected. USCIS would include all advanced degree holders in the lottery for the regular cap, and the regular cap lottery would be conducted first. USCIS would then conduct a second lottery if there are enough remaining advanced-degree holders to meet the advanced-degree exemption. Currently USCIS handles the process in reverse of that order. USCIS has indicated that it may implement this part of the proposed rule for the April 2019 process even if it does not implement the proposed change in the registration process.

Employers who wish to pursue H-1B petitions for their employees should begin the planning process now and be prepared to file full H-1B petitions for each candidate under the current process.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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