United States Citizenship and Immigration Services (USCIS) has proposed a new rule making changes to the annual selection process for H-1B visas.
H-1B visas are currently limited to 65,000 per fiscal year, with an additional 20,000 “Master’s cap” H-1B visas available to workers with a Master’s degree from a U.S. university.
Each year for the past several years, the demand for H-1B visas has far outpaced this statutory limitation. The result has been that organizations wishing to utilize the H-1B program must file a petition with USCIS for any worker they wish to sponsor on April 1 of each year, the first date to apply for an H-1B visa for the following fiscal year beginning October 1.
USCIS then conducts a lottery system and receipts those petitions randomly accepted in the lottery. The petitions that are not accepted under the lottery are rejected, and the physical filings sent back to the petitioner.
Acceptance under the cap does not mean that the H-1B visa is approved – only that the case will be adjudicated on its merits and approved for the next fiscal year beginning in October if it meets the legal requirements for an H-1B visa.
The proposed rule would create an electronic registration process for organizations seeking to file H-1B petitions on behalf of workers. Petitioners would submit an electronic registration providing basic information such as the employer’s name and address and the beneficiary’s passport information. A petitioner would be able to create only one registration for each potential beneficiary.
Under the proposed rule, USCIS would conduct an initial registration period, the dates for which would be announced on its website. The language in the proposed rule requires that this initial registration period last a minimum of 14 days and begin at least 14 days before April 1.
If at the end of the initial registration period USCIS receives sufficient registrations to meet the H-1B visa cap, it would randomly select from those registrations received the cases to be filed under the cap. If it had not yet received enough registrations, USCIS would issue selection notices to all of those registrations received, and then extend the registration period as needed.
The new rule also changes the order in which petitions are selected under the regular cap and the Master’s cap. USCIS projects that this change will increase the number of workers with Master’s degrees being selected, thereby favoring petitions for more highly skilled workers.
The proposed registration system would prevent petitioners from needing to mail out physical petitions for the chance at selection in the lottery, and reduce the administrative burden on USCIS of processing and returning petitions that are rejected.
However, given the “14 day” language in current proposed rule, USCIS could conduct this registration period through the end of March and not announce selections until the day before the April 1 filing date.
This would require that petitioners and their legal counsel still complete all of the necessary preparations for filing an H-1B petition, prior to being notified of selection. In this scenario, the cost to actually mail petitions that are destined for rejection would be eliminated, but the time and expense in preparing those petitions would not.
The comment period for the proposed rule changes is underway as of today and will continue until January 2, 2019.
USCIS has stated that the rule could be published in time for the 2020 fiscal year H-1B cap season opening on April 1, 2019, but has reserved the option to delay the implementation for another year if necessary.
