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Important Information and Updates Concerning Immigration Law

DHS’s Proposed Changes to the H-1B Visa Lottery Process

Department of Homeland Security Intends to Introduce Electronic Registration and Selection Order Reversal to the H-1B Visa Program

Proposed November 30th, 2018 and intended to go into effect in time for the next submission period for fiscal year 2020, the Department of Homeland Security has formulated a new rule which will substantially impact the H-1B Specialty Occupation Visa submission process. The proposed rule changes would essentially transform the steps one takes in applying for the H-1B visa while also reversing the order in which the petitions are selected within the lottery.

DHS Rule Changes to H-1B Specialty Occupation Visa

In light of these changes, it appears that DHS is attempting to simplify the initial application requirements (at least before one is notified of his or her lottery selection) and obtain a result in which more visas are awarded to those with higher educational backgrounds. DHS has also stated that, with regards to the process proposed rule changes must go through and the admittedly unlikely probability that everything transpires speedily enough so as to allow United States Citizenship and Immigration Services to fully implement the new system in time for the 2019 registration period due to begin on April 1st, there may be some important nuances to prepare for as the incoming date approaches.

Immigration attorneys and their clients should continue to prepare for the H-1B submission period as they would in previous years. However, law offices and H-1B hopefuls should ensure that they remain aware of the developments within the ongoing finalization process as well as all impending government announcements regarding what specific changes will be impacting their tackling of the H-1B application process in 2019.

Electronic Registration for H-1B Petitioners

The proposed changes include a new requirement whereby those looking to submit H-1B cap-subject petitions would now register electronically with USCIS during a designated period. The time given to register would span at least 14 days and occur at least 14 days prior to the filing window that normally begins on April 1st. Additionally, notice of the scheduled registration period will be given at least 30 calendar days prior on USCIS’s website.

Therefore, rather than having to draft and submit H-1B petitions in ignorance of whether their chances at obtaining the visa will survive or, on the other hand, be swiftly eliminated by the lottery selection process, petitioners under the new rule would simply have to register online within the ordained timeframe. The lottery would then select from the pool of those registered, after which only those who are notified of their successful selection would then submit their corresponding H-1B petition on behalf of the beneficiary. The related filing period for selected registrants would span at least 60 days.

Furthermore, USCIS states that under the proposed rule change it would retain a reserved portion of unselected H-1B registrations in order to allow additional cases to be filed in case the quota is not filled. This would occur due to petition rejections and withdrawals, as well as cases in which selected employers subsequently fail to file H-1B petitions on behalf of their intended beneficiaries. USCIS has also stated its authority to reopen registrations should more cases be necessary in order to fulfill the annual quota.

Required with the initial registration would be basic information regarding the prospective employer and beneficiary, including:

  • The employer's name, identification number (EIN), and address.

  • The employer's authorized representative's name, job title, and contact information.

  • The beneficiary's name, date of birth, country of birth, country of citizenship, gender, passport number, and whether the beneficiary has obtained a master's or higher degree from a U.S. institution of higher education.

  • The employer's attorney or accredited representative (if applicable).

  • Any additional basic information requested by the registration system or USCIS.

  • Attestations, including the attestation that the employer intends to file an H-1B petition for the beneficiary in the specified position.

Petitioners would be required to file separate registrations for each beneficiary and are allowed one registration per beneficiary within each fiscal year. There are as of yet no existing proposals regarding fees for registering.

Order Reversal in USCIS’s Selection of Petitions under the H-1B Cap and the Advanced Degree Exemption

Under the current guidance, when H-1B cap and the advanced degree exemption are both reached within the first five days of the year’s filing period, the advanced degree exemption beneficiaries are given priority and selected first. DHS’s proposed rule would reverse this practice.

Specifically, if the newly formulated guidance is implemented, the selection order will be flipped in that USCIS would first count all applicants towards the number estimated to fill the regular H-1B cap. Upon completion of this, the agency would then move on to selecting beneficiaries falling under the advanced degree exemption. USCIS believes this order alteration will increase the selection of beneficiaries with a master’s degree or higher from a U.S. institution of higher learning by 16%.

Potential Nuances in Implementing the Proposed H-1B Changes

While USCIS wishes to have the new guidance and all its adoptions in place for the next H-1B filing period beginning April 1st, the agency understands this to be unlikely given the short time frame it has for completing the prerequisite regulatory process. If it results that this process cannot be completed before the upcoming H-1B filing season, USCIS may simply continue to accept the petitions and their supporting documentation as they have done in years past.

Furthermore, included within the proposed rule is a severability clause under which DHS may separately and independently implement either the newly introduced electronic registration or the reversed process of H-1B selection if both cannot be put into effect in tandem. This could result, for example, if the judiciary enjoins or invalidates one of the above changes.

As it stands, prospective H-1B petitioners and beneficiaries as well as the law offices assisting them should prepare for the upcoming filing season as if it were business as usual, albeit conscientiously in regard to the rule’s implementation progress and any related development therein. It may very well be possible that this fiscal year 2020 filing period is like years previous. It may also result that only one of the proposed changes is put in place while the other is postponed or even shelved due to unforeseen circumstances.

In short, be sure to continuously seek out updates and visit USCIS’s website for potential announcements illustrating the future of the H-1B program and what will be entailed for those pursuing it. To be certain that you are doing everything possible in order to navigate the U.S. immigration system at its smoothest, the best route as usual is to contact an immigration law professional.