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Administration Proposes Changes to H-1B Process

On December 3, 2018, the Department of Homeland Security (DHS) published a proposed change to its H-1B regulations.  H-1B visas are temporary permissions for foreign professionals to come to the U.S. to work in positions known as “specialty occupations.”  These positions normally require a bachelor or higher-level degree, therefore highly specialized knowledge, to perform.  If the new rules go into effect, they will change the way H-1B visas are processed significantly.  H-1B visas are one of many types of temporary work visas available under the US immigration laws.

Congress grants 65,000 H-IB visas annually to persons with less than a US masters degree, known as the “regular cap” quota.  There are an additional 20,000 “masters cap” visas granted for foreign nationals with advanced degrees from US universities. Usually H-1B petitions greatly exceed the number of available visas. For the fiscal year (FY) 2019 filing season, according to the USCIS website, employers filed 190,098 H-1B petitions for the 85,000 spots.

Under the proposed changes, those seeking to file H-1B petitions must first register online with USCIS during the designated period. All registrations, including those eligible for the “masters cap” exemption, will be considered for the “regular cap” visa spots. After USCIS randomly selects enough registrations to fill the visa cap of 65,000 workers, it  will select additional registrations for 20,000 visas under the advanced degree exemption. DHS anticipates that this change in the order of the selection process will increase the number of H-1B visa recipients who have a masters or higher degree by up to sixteen percent.

All initial registrations will be made electronically. USCIS expects that electronic registration will save both money and time. During each of the last five years, the agency said it received “well over” a hundred thousand petitions for cap-subject visas in just the first few days of the H-1B filing period. The agency has had to process the petitions and their supporting evidence (which can number hundreds of pages per petition) and fees that it receives, store the paperwork and then return petitions and fees for those petitions which were not selected. Under the proposed new regulations, petitions and supporting evidence will be filed only for registrations that have been selected. After being selected, petitioners will have at least 60 days in which to file their petitions. USCIS may choose to stagger the filing period to lessen administrative backlogs.

It is not certain the new electronic system will be operational by the registration period for FY2020, which commences on April 1, 2019. USCIS concedes it might not be ready, though it has been working to develop and test the new system, since the agency is experiencing technical problems with the new system.  So USCIS likely will suspend the new registration requirement for that year. The proposed rule includes a provision that would enable USCIS to delay implementation if the agency still is working to complete user testing of the system.

The proposed regulations also prohibit petitioners from submitting registrations for the same beneficiary more than once in each fiscal year.  This would be a much-needed effot to prevent staffing companies from “flooding” the system with multiple registrations, which tends to crowd out petitions by legitimate US empoyers.  In order to ensure there is a real job offer for each petition, the Department is also requiring that petitioners attest they intend to file an H-1B petition for the beneficiary for the position listed in the registration. Under the proposed regulation, the filing of a cap-subject H-1B petition is limited to the beneficiary named on the original, selected registration.  Multiple beneficiaries cannot be listed on a single registration.

DHS says that the new regulations follow an executive order from the President, requiring the Department to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

If handled correctly, these proposed changes could have beneficial effects, such as attracting more accomplished and highly trained foreign workers and lessening the confusion of hundreds of thousands of H-1B petitions being filed and then rejected.  So far, there is nothing suggesting this process change will lower the number of foreign workers US companies may recruit.

For further information on H-1B visas or any related topic, contact one of the immigration attorneys, at Deutsch, Killea and Eapen, Immigration Law FirmWe file H-1B applications for many employers each year.


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