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The United States Department of Homeland Security
("DHS") issued a press release on January 30, 2019, announcing
revisions to the H1-B visa program, which were made in direct
response to President Trump's April 17, 2017 "Buy American and Hire American"
Executive Order (the "Order"). As we discussed in our previous blog post about the then-proposed
changes, the final rule includes swapping the order of case
selection under the H-1B "lottery" and implementation of
a new electronic case registration and selection system, among
other technical changes.
The Order, which sought, in part, to maximize the hiring of
American workers, directed DHS and other relevant agencies to
ensure that US immigration programs "protect the interests of
United States workers in the administration of our immigration
system, including through the prevention of fraud or abuse."
It specifically instructed DHS to review the H-1B visa program to
"ensure [they] are awarded to the most-skilled or highest-paid
petition beneficiaries." The H-1B visa is the workhorse among
U.S. high-skilled visas, allowing American companies to hire
temporary, foreign workers in a "specialty occupation"
that requires at least a related bachelor's degree (or its
equivalent). Specialty occupations are found in many fields,
including medicine, law, research, and computer science, among
others. Under US law, H-1B visas are subject to an annual cap of
65,000 ("Regular Cap"), with an additional 20,000
available for workers with a masters or higher degree from a US
university ("Master Cap").
Master Cap Selection Changes
Under the current system, H-1B petitions are accepted starting
on April 1, for the fiscal year that begins October 1 of the same
calendar year. In recent years, so many H-1B applications have been
received that a lottery system was required to choose which
petitions would be adjudicated. Once DHS receives enough petitions
to reach the H-1B caps, usually only 3-4 days after April 1, it
conducts a lottery to select applicants for adjudication under the
cap amounts. Until now, H-1B petitioners were first selected
against Masters Cap, and in years when such petitioners exceeded
the 20,000 cap, those not selected within this exemption were then
placed into the general application pool for another chance of
random selection.
The new rule reverses the process. Now, DHS will
select first conduct the Regular Cap lottery of 65,0000 visas for
all petitions – including those that also qualify for the
Master Cap. Once the Regular Cap is exhausted, those Master Cap
petitions not already selected will be run through the Master Cap
lottery of 20,000 visas. DHS reports that this reversal will
increase the number of H-1Bs awarded to those with at least a US
Master's degree by as much as 16%. The rule changes will become
effective April 1, 2019, and the new selection process will begin
in FY 2020 (for applications filed beginning in April 2019).
Electronic Registration System Placed on Hold
The new rule also introduce an electronic registration system
for H-1B petitioners that DHS believes will enhance efficiency and
cost effectiveness of the visa application process, resulting in a
savings for employers and the agency. Whereas completed petitions
are currently filed on April 1, the new electronic system will
allow employers to pre-register during a set period, and provide
information on their proposed H-1B filings for the year. The
proposed H-1B petitions for each registered company will then be
run through the new two-step lottery process. Selected registrants
will subsequently prepare and file their H-1B petitions and pay the
related fees.
Concerns have been raised that the new registration process will
allow frivolous or non-meritorious registrants to hold places in
the H-1B cap lottery. DHS responded that it has taken steps to
prevent this from happening by requiring all registrants to
complete an attestation designed to "ensure that each
registration is connected with a bona fide job offer and, if
selected, will result in the filing of an H-1B petition." DHS
has also suspended the use of the registration system for FY 2020,
in order to allow further testing of the system before it becomes
mandatory. DHS will publish notice at least 30 days in advance of
the commencement of the initial electronic registration period, but
it is expected to be available for the April 2020 filings (FY
2021).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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