Employers: Get Ready for Changes to the H-1B Visa Process

By: Cristina Perez, Esq.

In late 2018, the immigration community was teased by the Department of Homeland Security (“DHS”) that it proposed to establish an electronic registration program for those employers who wished to file non-immigrant visa petitions for foreign professional workers under the H-1B category. DHS apparently considered this electronic registration necessary because the demand for H-1B specialty occupation workers by U.S. employers has often exceeded the numerical limitation allowed under federal immigration regulations and would allow the U.S. Citizenship and Immigration Services (“USCIS”) to more efficiently manage the intake and selection process for these H-1B petitions. This news concerns many of professionals in the field as the filing, processing and adjudications H-1B petitions has become incredibly aggressive and difficult over the years, and particularly under this administration. Adding to these concerns are issues regarding the efficiency and unpredictability of an electronic registration system that other non-immigrant visas have endured, namely the H-2B non-immigrant visa for temporary workers.

However, on January 31, 2019, DHS published the final rule in the Federal Register that amends the regulations governing H-1B petitions that are filed under the H-1B cap (commonly known as the “H-1B visa lottery”) for beneficiaries counted towards the H-1B regular cap, as well as beneficiaries with advanced degrees (from U.S. institutions of higher education) who are eligible for an exemption from the regular cap (“advanced degree exemption”). The final rule reverses the order by which USCIS will select H-1B petitions under the H-1B regular cap and the advanced degree exemption, and requires petitioners/employers seeking to file H-1B cap-subject petitions to register electronically with USCIS during a designated registration period. This rule also reverses the order in which USCIS will select H-1B cap-subject petitions in order to increase the number of advanced-degree holders selected under the H-1B cap. The reverse selection order will apply to petitions filed for this fiscal year’s H-1B cap season (i.e., the 2020 H-1B cap season).

While the final rule is effective April 1, 2019, DHS will suspend the electronic registration requirement for this fiscal year’s H-1B cap filing season but will apply the reverse selection as described above. This means that H-1B cap-subject petitions filed as part of the 2020 H-1B cap filing season, which opens on April 1, 2019, must be filed using the same process as in prior years, with petitioners submitting a complete H-1B petition to USCIS, together with filing fees, in order to be eligible to be considered for selection in the H-1B visa lottery.

While there may be some comfort knowing the processing of the H-1B visa will remain status quo for now, looking ahead, it is important for employers to understand what is required of them under this new rule in terms of “registering with USCIS.”

Essential Details on the “Electronic Registration Requirement”
  • DHS anticipates the registration requirement will be implemented starting with the fiscal year 2021 H-1B cap.
  • Once the electronic registration requirement is implemented, all petitioners who seek to file H-1B cap petitions will be required to first electronically register with USCIS during a designated registration period.
  • The registration period will last a minimum of 14 calendar days and will start at least 14 calendar days before the earliest date on which H-1B cap-subject petitions may be filed for a particular fiscal year.
  • A petitioner must electronically submit a separate registration to file a petition for each beneficiary it seeks to register, and each beneficiary must be named.
  • A petitioner may only submit one registration per beneficiary in any fiscal year.
  • USCIS will notify petitioners whose registration has been selected into the visa lottery that the petitioner is eligible to file an H-1B cap-subject petition on behalf of the beneficiary named in the notice within the filing period indicated on the notice.
  • Only those petitioners whose registrations are selected will be eligible to proceed to complete and file an H-1B cap-subject petition during the associated filing period, which will be at least 90 days.
  • USCIS will announce the start of the initial registration period on the USCIS website at least 30 calendar days prior to the commencement of the registration period.
  • USCIS will provide training to the public on the registration system in advance of its implementation to ensure petitioners understand how to access and use the system.
  • USCIS expects that the electronic registration requirement, once implemented, will reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process for USCIS and petitioners.
Other important issues affecting H-1B petitions: Allocation of H-1B Cap Numbers
  • Currently, when the H-1B cap and the advanced degree exemption are both reached within the first five days in which H-1B cap petitions may be filed, the advanced degree exemption beneficiaries are selected before the H-1B cap beneficiaries.
  • The final rule will reverse the selection order and count all applicants towards the number projected as needed to reach the H-1B regular cap first. Once a sufficient number of applicants have been selected for the H-1B regular cap, USCIS will then select applicants towards the advanced degree exemption.
  • USCIS predicts that changing the order in which USCIS counts these allocations will likely increase the number of beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected under the H-1B numerical allocations.
  • Specifically, USCIS estimates that the change will result in an increase of up to 16% (or 5,340 workers) in the number of selected petitions for H-1B beneficiaries with a master’s degree or higher from a U.S. institution of higher education.
  • USCIS will proceed with implementing this change to the H-1B cap allocation selection process for the FY2020 cap season (beginning on April 1, 2019), notwithstanding the delayed implementation of the H-1B registration requirement

For now, petitioners/employers beneficiaries should plan to prepare for this season H-1B cap as they have in the past.

Note: some of the information in this Alert was derived from the American Immigration Lawyers Association.

If you have any questions regarding H-1B visa petitions, the electronic registration program, or any immigration issue affecting an employer, please contact Cristina Perez. Cristina is a Partner and Chair of Leech Tishman’s Immigration Practice Group. Cristina is based in the firm’s Pasadena office and can be reached at 818.550.8300 or cperez@leechtishman.com.

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