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Update: New Rule for H-1B Visas Goes into Effect

The Department of Homeland Security (DHS) published its final rule, amending the process for selecting foreign nationals to receive cap-subject H-1B visas. The H-1B visa program allows companies to hire, for a three-year term (renewable once), foreign workers who have a bachelor degree or higher and have highly specialized knowledge in specialty occupations such as biotechnology, science, engineering, medicine and information technology.

As discussed  in one of our earlier posts, one of the major components of the new rule is an electronic registration system for H-1B visas. United States Citizenship and Immigration Services (USCIS) has delayed the start of this new registration system past the fiscal year (FY) 2020 cap season. When the system is implemented, all petitioners who want to file cap-subject H-1B petitions will be required to register with the UCSIS during a designated period. Only if USCIS selects a registration, will the employer (termed a “selected registrant”) be eligible to submit a petition along with supporting documents. USCIS expects this change will save money and improve its efficiency by reducing the amount of documents the agency needs to handle to only those from selected petitioners.  USCIS also projects that the rule change will decrease the aggregated costs for all unselected employers by between $47.3 million to $75.5 million annually.

USCIS suspended the registration requirement for the FY 2020 cap season due to the feedback it received during the comment period, which expressed concerns that the electronic registration might not be fully functional by April. The government will give notice before the registration system is implemented, along with instructions on using the new system. It also will give at least thirty days notice before the beginning of a designated electronic registration for each fiscal year. The initial registration period will last at least fourteen days.

A second significant change is that USCIS has reversed the order it uses to select cap-subject visa petitions. Usually there are a great many more petitions than available H‑1B visas (last year USCIS received twice as many petitions as visa spots) When the demand for visas exceeds the supply, USCIS uses a lottery system to select H-1B petitions. Currently, USCIS selects petitions for the 20,000 visas that are set aside for foreign nationals with advanced degrees from U.S. universities; then USCIS selects petitions for the remaining cap-subject 65,000 visas. When the new rule goes into effect on April 1, 2019, USCIS will randomly select petitions for the 65,000 cap-subject visas from a pool of all potential beneficiaries, including those eligible for the advanced-degree visas. The agency will then select from the remaining eligible petitions to fill the 20,000 advanced-degree-exemption visas. In the future, when the electronic registration system is implemented, registrations will be used instead of petitions. The random nature of the lottery makes it difficult to project exact number of foreign nationals with advanced degrees who will benefit from the changes; however, USCIS estimates that the rule change will increase the number of H-1B visas for foreign nations with advanced degrees from U.S. universities by approximately sixteen percent (about 5430 workers) annually.

The new rule also contains measures aimed at preventing abuse of the H-1B visa system. Employers are prohibited from submitting more than one registration for the same person in a single fiscal year. If a petitioner submits more than one registration per beneficiary in the same fiscal year, the USCIS will consider all registrations filed by the petitioner for that beneficiary during the fiscal year invalid. Petitioners are also prohibited from substituting beneficiaries for the same position. They must file an attestation indicating their intent to file a petition for an H-1B visa for the beneficiary in the position indicated in the registration.

If you have any questions about the changes to the H-1B visa system, please contact one of the immigration attorneys at Deutsch, Killea and Eapen, Immigration Law Firm.

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