Immigration Law Insights

Every January, employers begin making preparations for the H-1B visa filing season so they will be ready for the H-1B cap filing deadline on April 1^st.  Filing H-1B petitions typically come with a degree of anxiety given the visa category has historically been oversubscribed resulting in petitions selected in a random lottery in order to have a chance at approval.  On November 30, 2018, the Department of Homeland Security announced plans to drastically change the H-1B lottery system, which should have H-1B employers making preparations earlier than in prior years.

The Current H-1B System

H-1B visas are available to foreign nationals who will work in a position requiring a Bachelor's Degree in a specific field.  Businesses seeking to employ foreign nationals in engineering, teaching, and finance positions routinely apply for H-1B visas.

Congress has capped the number of H-1B visas available each year at 65,000 with an additional 20,000 available for foreign nationals with a U.S. Master's Degree.  Currently, employers must file their H-1B petitions in the first five (5) business days of April in order to avoid missing out on a visa due to the cap.  The United States Citizenship and Immigration Services ("USCIS") routinely receives more than 190,000 H-1B visa petitions in the first few days of April, resulting in a random lottery to determine which foreign nationals will be eligible to obtain an H-1B visa.  USCIS first randomly selects 20,000 petitions that qualify for the additional U.S. Master's Degree visas.  The remaining unselected Master's Degree petitions are then added to the other petitions for selection of the 65,000 H-1B slots.  The current system has proved laborious for USCIS and resulted in businesses having to delay their H-1B employees' start dates because of long adjudication delays in recent years.

The Proposed Changes

Under the proposed new system, USCIS will introduce a mandatory online H-1B registration portal.  Employers seeking to file an H-1B petition would have to register using the new system during a registration period lasting at least fourteen (14) days.  The registration would include basic information about the company, the position, and the H-1B beneficiary.  Employers would be limited to filing one (1) registration per foreign national.

If the number of registrations received during the registration period is sufficient to reach the mandated H-1B cap, USCIS would, as it has in the past, institute a lottery.  Rather than selecting the 20,000 U.S. Master's Degree petitions first, however, USCIS would initially select 65,000 petitions from all registrations received.  Once the 65,000 cap has been reached, USCIS would select the last 20,000 slots from the remaining eligible U.S. Master's Degree registrations.  USCIS would then notify an employer of its selection in the lottery, and provide the employer at least sixty (60) days to file the H-1B petition.

Impact on Businesses

The proposed new rule should have a major impact on next year's H-1B petitions subject to the cap.  Employers considering utilization of the H-1B program in 2019 should be prepared to make decisions earlier than usual to give themselves more time to navigate the uncertainty of the new registration process.  The change in how petitions are selected could also make sponsorship of a foreign national with a U.S. Master's Degree more advantageous, since those with U.S. Master's Degrees should have a better probability of being selected under the new system.

Some definite good news with the proposed rule change could be the return of Premium Processing for cap-subject petitions.  By moving to an electronic lottery process, USCIS should lessen the burden on the agency and potentially avoid some of the inefficiencies of the current system.  Premium Processing guarantees an agency decision on the H-1B petition within fifteen (15) days and allows more flexibility for employers if the need to make alternative arrangements in order to fill positions arises.   Comments to the proposed rule must be received by January 2, 2019.