USCIS proposes changes to H-1B lottery

December 04, 2018

Immigration Law Alert

Author(s): Jason Gerrol

USCIS has proposed to add a pre-registration process to the H-1B “lottery,” and reverse the order by which H-1B petitions are selected in the “lottery.”

By notice dated December 3, 2018, the Department of Homeland Security (DHS), and U.S. Citizenship and Immigration Services (USCIS) in particular, proposed changes to the process by which H-1B cap subject petitions are selected each fiscal year. The proposed change is in response to President Trump’s Buy American and Hire American executive order, which directed DHS to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

Specifically, USCIS has proposed to (1) add a pre-registration process to the H-1B “lottery,” and (2) reverse the order by which H-1B petitions are selected in the “lottery” thereby increasing the total number of petitions selected for H-1B beneficiaries possessing a master’s degree or higher from a U.S. college or university.

Comments on the proposed USCIS rule are due January 2, 2019. As the rule is not yet final, it remains to be seen whether USCIS will have sufficient time to implement the pre-registration requirement prior to April 2019.

However, the proposed rule does expressly state USCIS may reverse the order by which H-1B petitions are selected, even if the pre-registration process is delayed. As such, employers should anticipate a final rule and at least a reversed selection process will be in place in time for the April 2019 H-1B filing season, and consult with immigration counsel accordingly.

What is the H-1B lottery?

H-1B visas are designated for foreign workers who are coming to the United States temporarily to perform services in a specialty occupation, which requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent in a specific specialty.

For each fiscal year, beginning October 1 of each year, there is a numerical quota of 85,000 new H-1Bs available: 65,000 for foreign nationals with a bachelor’s degree (or equivalent education) from a U.S. or foreign college or university (regular H-1B cap), and a 20,000 exemption for foreign nationals with a master’s degree, or higher, from a U.S. college or university (master’s H-1B cap).

In brief, the H-1B filing process consists of an employer preparing an H-1B petition on behalf of a foreign national worker and filing that petition with USCIS on April 1, the first date petitions can be filed for the fiscal year starting October 1.

Because USCIS generally receives more H-1B petitions than the 85,000 quota, USCIS conducts a random lottery to select the 85,000 new H-1Bs for the fiscal year. H-1B petitions that are not selected in the lottery are returned to the petitioner, along with any filing fees.

What is the proposed pre-registration process for new H-1Bs?

Under the pre-registration process, employers will no longer prepare and file a complete H-1B petition for selection in the lottery. Rather, employers will now electronically register with USCIS during a designated registration period. There is no fee associated with the registration, and the employer’s registration will include various information, such as employer’s name, attorney of record (if applicable), beneficiary’s name, position offered and whether the beneficiary obtained a master’s or higher degree from a U.S. college or university.

USCIS will then select the numerical quota of 85,000 new H-1Bs from the registrations, and if selected by USCIS, the proposed rule provides employers with at least 60 days to prepare and file the full H-1B petition and filing fees with USCIS for adjudication.

USCIS believes adding a pre-registration requirement will not only result in cost savings to employers by avoiding the need to prepare and file a full H-1B petition that may ultimately not be selected in the lottery, but create a much more efficient and orderly H-1B filing process.

Why is USCIS reversing the order by which H-1Bs are selected?

USCIS has historically conducted their random lottery by first selecting 20,000 H-1B petitions under the master’s H-1B cap, and then selecting an additional 65,000 H-1B petitions from the regular H-1B cap and any petitions not selected in the initial master’s H-1B cap selection.

The proposed rule would reverse that order, so that USCIS would first select 65,000 registrations from the entire pool of regular H-1B cap and master’s H-1B cap registrations. A second selection process would then select 20,000 additional registrations from the master’s H-1B cap alone.

By reversing the order, USCIS believes a higher number of H-1B beneficiaries possessing a master’s degree or higher from a U.S. college or university will be selected in comparison to years past.

What petitions are not counted in the 85,000 H-1B quota?

The H-1B lottery does not apply to H-1B petitions filed by cap-exempt employers (i.e., institutions of higher education, nonprofit entities related to or affiliated with such institutions, nonprofit research organizations or government research organizations, or where the foreign national will be employed at any such cap-exempt institution), or to H-1B workers previously selected in the lottery and seeking a change of employer, extension, etc.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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