Proposed Changes to H-1B Visa Regulations

On November 30, 2018, The Department of Homeland Security published a notice of proposed rulemaking affecting the H-1B visa process that would require petitioners seeking to file H-1B cap-subject petitions to register electronically with the U.S. Citizenship and Immigration Services (USCIS) during a designated registration period.   It would also reverse the order by which the agency selects H-1B petitions under the H-1B cap and the advanced degree exemption. Public comments were to be submitted by January 2, 2019. DHS proposed:

  • Adding a free electronic pre-registration process; and
  • Changing the random selection process in a way that would likely benefit holders of U.S. master’s degrees.

The pre-registration process would involve the following:

  • USCIS will give 30 days’ notice on its website of the opening of the pre-registration period
  • Pre-registration would begin no later than 14 days before April 1 of each year
  • Basic information would be required for pre-registration, including the job title, the beneficiary’s name and citizenship, and whether the beneficiary has a U.S. master’s or higher degree (Petitioners would need to file a separate registration for each beneficiary and would be limited to one registration per beneficiary for the same fiscal year)
  • After the random selection process, Petitioners whose petitions are selected will receive notice that they are eligible to file an H-1B petition
  • Selection notices will indicate the filing location and the filing period
  • There will be at least a 60-day post-notification filing period
  • Pre-registrations will be maintained until all available H-1B visas are used and, if more cases are needed to fulfill the annual quota, the pre-registration process may be reopened
  • Pre-registrations who have not been selected will not carry over to the next fiscal year

With the “Buy American, Hire American” Executive Order, President Donald Trump indicated that he would like to see “the best and brightest” come to the U.S. through the H-1B process. To put this into effect, DHS proposes to invert the current random selection process through rulemaking, without eliminating random selection altogether. The Department of Homeland Security states the outcome will be an estimated 16% increase in beneficiaries accepted with a U.S. master’s (or higher) degree. This would make it more difficult for companies to hire individuals into positions that only require a bachelor’s degree.

This is how it will work:

Instead of first conducting the U.S. master’s degree lottery and then adding any remaining U.S. master’s degree beneficiaries into the “regular” lottery, DHS will:

  • First conduct the “regular” lottery for 65,000 visas with the master’s degree beneficiaries included,
  • Then put the remaining U.S. master’s degree beneficiaries into a lottery for the separate 20,000 U.S. master’s degree allocation

The proposed rule notes that the pre-registration process and the change in the random selection process are severable. In other words, even if DHS does not have sufficient time to institute pre-registration for the upcoming cap season, it still may change the selection process.  If the rule is finalized as proposed, but there is insufficient time to implement the registration system in time for the FY2020 cap selection process, USCIS could suspend the electronic registration system for the upcoming H-1B filing season, and continue to accept complete H-1B petitions with supporting documents as it has done in the past.

USCIS has indicated it would like to finalize and implement the regulation and the electronic registration system in time for the opening of the upcoming Fiscal Year (FY) 2020 H-1B cap filing season on April 1, 2019. However, the likelihood that USCIS will finalize both by April 1, 2019 is slim, given the tight timeframe by which the agency must complete the regulatory process.