H-1B Visas: Employers Be Aware of Potential Changes

U.S. Citizenship and Immigration Services envelope, white folder for naturalization certificate on table with American flag

Photo credit: iStock.com/ablokhin

By David S. Rugendorf

Changes are in the works related to the processing of H-1B visa petitions, and employers intending to file such petitions should be aware. On Monday, December 3, 2018, the U.S. Citizenship and Immigration Services (USCIS) announced a proposal to change the annual cap-subject H-1B visa petition filing system in two significant ways: (1) the establishment of an online H-1B registration system; and (2) a major change in the procedures related to the annual H-1B visa cap lottery.

By law, the number of new H-1B visa petitions for professional worker beneficiaries is capped at 65,000 annually, with an additional 20,000 set aside for individuals with advanced degrees from U.S. universities. Advanced degrees are considered to be master’s degrees or higher. Certain employers, such as hospitals, non-profit research institutions and universities are exempt from this annual cap. As a result of this limitation on H-1B filings, the USCIS receives well in excess of the allowable number of petitions at the beginning of each year’s filing season, April 1. Accordingly, a random lottery has taken place in early April of each year. Employers are notified over the next few months if their petitions are among the lucky 85,000 selected. The numbers are daunting – approximately 198,000 petitions where received in fiscal year 2017, and approximately 236,000 in fiscal year 2016.

Proposed Registration System

Under the new proposal, the government proposes to create an internet-based registration for H-1B petitioning employers and their beneficiaries. The government will announce the opening of the registration period at least a couple of weeks prior to the April 1 filing date, and employers will be instructed to input basic information about themselves and their proposed H-1B employee beneficiaries online. The current proposal does not include a fee for this registration process. Once the registration period closes, the USCIS will conduct a random selection process, and only those employer petitioners and proposed employee beneficiaries chosen will be eligible to file H-1B petitions after the April 1 filing date. Only one registration entry per proposed employee beneficiary may be filed by an employer – if an employer is found to have filed multiple registrations for the same beneficiary, then the registrations will be disqualified.

The USCIS projects that this new system will result in cost savings for employers, who will no longer have to bear the costs of preparation and filing of H-1B petitions that are ultimately not selected in the lottery. It estimates those costs savings as between approximately $47 million to $53 million annually. It also projects that the government will save approximately $1.6 million annually in cost savings on processing and return mailing petition packages that are not selected in the annual lottery.

It should be noted that selection in this proposed registration system only allows the employer to file a cap-subject H-1B petition on behalf of a given individual, and does not guarantee approval of the petition.

Changes in the Random Selection Process

Currently, each year the USCIS conducts the random selection lottery for the 20,000 H-1B visa petitions reserved for employee beneficiaries with advanced degrees from U.S. colleges or universities before it conducts the random selection lottery for the 65,000 H-1B spots for all eligible applicants. This new visa process will reverse the selection order, and the 65,000 general lottery will be conducted prior to the 20,000 advanced-degree only lottery.

According to the USCIS, changing the order in which the two random selection lotteries are conducted will result in a greater number of advanced degree applicants selected overall. This is consistent with the Trump Administration policy of “Buy American and Hire American” announced April 18, 2017, which, among other priorities, directed immigration officials to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” (Executive Order 13788. Buy American and Hire American, 82 FR 18837, sec. 5, (April 18, 2017).)

Conclusion

Employers should be aware that these changes are still proposals and not yet final. What finally results may be the same, slightly different, or they may not be instituted at all. Whether or not the proposed online registration system will be in effect for the April 2019 filing season is uncertain, especially given the time needed to develop, test and implement such a system. Employers should stay tuned.

Regardless of what results and when, MSK’s Immigration Department attorneys remain ready to assist its U.S. employer clients with advice regarding their H-1B needs, and preparation of any needed H-1B petitions. Given the deadlines related to the annual H-1B process, employers are encouraged to contact us as soon as possible.

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