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H-1B Final Rule Analysis: Pre-Registration and Masters Cap Lottery Reversal

H-1B Pre-Registration

The landscape for the H-1B visa seems to be constantly changing. With President Trump paying special attention to the H-1B during his presidency, many visa holders and potential visa holders have been concerned for the future of this popular visa option. Now, there has been a significant change in the way that the annual lottery is conducted. Keep reading to find out more about the new H-1B pre-registration rule and how it can affect your case. Also, check back here periodically to see if any updates have altered your projected H-1B plan.

How the H-1B Usually Works

For those who are unaware of how the H-1B is treated in immigration law, here is a rundown of the process.

The H-1B is a nonimmigrant visa created for specialized professionals who have at least bachelor’s degrees and U.S. job offers that require those degrees. Because the requirements do not go much further than that, USCIS usually receives hundreds of thousands of petitions for the H-1B every year. To combat this influx, an annual cap was placed on the number of H-1B visas that are issued. Since it’s inception, the cap has stood at a grand total of 85,000. However, because there are far more petitions than there are available spots, the USCIS conducts an annual lottery to randomly select the petitions that will go on to processing.

In years past, employers who were subject to the H-1B cap would have a short window of time to file their petitions. This is called the filing window and ran from the first business day in April until either the cap was reached or 7 days had elapsed, whichever came later. A computer would randomly select 20,000 petitions from those with master’s degrees and 65,000 petitions from everyone else.  Those petitions that were selected would go on to be processed and those that were not would be returned to their petitioners along with all filing fees and supporting documents.

This system involved having USCIS go through hundreds of thousands of petitions to collect the ones that were selected in the lottery and return the ones that were not. Therefore, to expedite this process, USCIS has been empowered by the new Buy American and Hire American executive order to create a new system that is intended to be implemented this 2020 H-1B filing season.

Changes to the H-1B Visa Lottery Process for 2020 and Beyond

On January 31, 2019, the Department of Homeland Security (DHS) published a final rule which makes two significant changes to the H-1B visa lottery process. The final rule will become effective on April 1, 2019.

The rule:

  • Adds an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions, and
  • Reverses the order by which USCIS will select petitions under the H-1B cap and the advanced degree exemptions.

ELECTRONIC REGISTRATION REQUIREMENT

Under this new system, employers will no longer submit petitions in order to enter the H-1B lottery. Instead, employers will need to pre-register their beneficiary workers online with USCIS. USCIS will require employers to pre-register a few weeks before the usual start of the lottery window on the first business day in April.

USCIS will then use these registrations to select lottery winners rather than using petitions. If you are an employer and your beneficiary’s registration was chosen, then you will need to submit your petition packet (along with fees and supporting evidence) on the first business day in April.

DHS has suspended the electronic registration requirement for this year’s H-1B cap. The suspension of the electronic registration requirement for this year’s H-1B cap filing season is in order to allow USCIS time to complete the necessary user testing of the registration system and to ensure the system and process are fully functional before they are implemented.

As the electronic registration requirement has been suspended for this year’s H-1B cap, all H-1B cap-subject petitions filed as part of the FY 2020 H-1B cap will have to be filed using the same process as in prior years. H-1B petitioners will need to submit a complete H-1B petition to USCIS.

CHANGES EXPECTED ONCE THE ELECTRONIC REGISTRATION SYSTEM IS IMPLEMENTED

USCIS anticipates the registration requirement will be implemented next year, starting with the FY 2021 H-1B cap. Once the electronic registration system is implemented, U.S. employers will be required to electronically register each potential H-1B employee by providing USCIS with basic information about the person and the position.

Employers will also be required to attest that they intend to file an H-1B petition for the beneficiary in the position for which the registration is filed, among other attestations. Petitioners will need to file a separate registration for each beneficiary and will be limited to one registration per beneficiary for the same fiscal year.

At this time, USCIS is not proposing to charge a fee for the electronic registration process. Once the electronic registration period is over, USCIS will conduct the H-1B lottery from the pool of timely-filed electronic registrations and only those who are selected will be eligible to file a full petition and receive an adjudication. Those selected would be notified that they are eligible to file an H-1B petition within a designated filing period, which will be at least 90 days.

USCIS has indicated that it will engage in stakeholder outreach and provide training to the public on the registration system in advance of its implementation.

What This Means for Employers

Under this new rule, employers no longer file petitions in order to enter their beneficiaries into the annual lottery starting in FY 2021. Instead, USCIS will pick registrations. What this means for employers is that the H-1B fees will not be required unless the beneficiary’s registration is selected and the petition is requested.

This also means that USCIS will no longer have to sift through and handle hundreds of thousands of petitions every year or mail back the packets and fees of the ones that were not selected. This streamlines the process and makes it much easier for employers to enter their workers into the cap.

REVERSAL OF THE ORDER BY WHICH THE H1B LOTTERY IS CONDUCTED

The second major change, the reversal of the order by which USCIS will select petitions under the H-1B cap and the advanced degree exemption, will take place this year during the 2020 H-1B cap. This change will result in USCIS counting all applicants towards the number projected as needed to reach the H-1B regular cap first. Once a sufficient number of applicants have been selected for the H-1B regular cap, USCIS will then select applicants towards the advanced degree exemption.

According to USCIS, it is anticipated that this change will result in an increase of up to 16% (or 5,340 workers) in the number of selected petitions for H-1B beneficiaries with a master’s degree or higher from a public or an accredited private non-profit U.S. University.

As a result, beneficiaries who possess only a bachelor’s degree, or a non-U.S. master’s or higher degree would have a decreased change of being selected for the H-1B lottery.
According to USCIS Director L. Francis Cissna – “these simple and smart changes are a positive benefit for employers, the foreign workers they seek to employ, and the agency’s adjudicators, helping the H-1B visa program work better. The new registration system, once implemented, will lower overall costs for employers and increase government efficiency.

POTENTIAL PITFALLS STEMMING FROM THE CHANGES TO THE H-1B VISA LOTTERY PROCESS

Once the electronic registrations system is fully operational and implemented, employers may register many positions that might not ultimately qualify for an H-1B or that might be abandoned because of the relative ease by which an employer can register a potential H-1B worker. This would result in uncertainty for employers whose registrations are not initially selected, making it difficult for them to effectively plan to fill their workforce needs.

While prioritizing advanced degree professionals is understandable, this could possibly penalize U.S. businesses, which employ professionals in fields where a master’s degree is not typically required, such as public education, accounting, and architecture.
Another sector that could be disadvantaged is healthcare, as it relies heavily on foreign physicians to supplement a shortage of U.S. doctors, as many such physicians complete their medical education overseas before seeking employment in the United States.

How Our Immigration Attorneys Can Help

The world of immigration law can be volatile at times. With the current political climate the way that it currently is, we can likely expect big changes to popular visa options such as the H-1B that can have a drastic effect on your case. The best way to make sure that you are making the right decisions and that you are appraised of all the recent changes in policy is to hire the services of a qualified H-1B attorney.

The immigration attorneys here at Immi-USA have decades of experience helping countless clients navigate the complexities of the H-1B visa. We file your petition, deal with RFE’s, communicate with USCIS on your behalf, and advise you on your options so that we can take the stress out of your immigration journey.

To get in touch with one of our lawyers and schedule your consultation with our office, you can fill out this contact form.

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