By: Sharon Barney, Esq.
On November 30, 2018, U.S. Citizenship and Immigration Services (“USCIS”) announced a notice of proposed rulemaking that may impact the H-1B visa lottery process as early as 2019. The proposed rule was published on December 3, 2018, and public comments will be accepted until January 2, 2019.
In its notice, USCIS announced two major changes to the H-1B visa lottery process: an electronic registration requirement for petitioners and a reversal in how petitions are selected in the lottery.
USCIS is proposing that all petitioners who intend to file an H-1B petition for FY2020 must register through an electronic registration system, which would be opened at least 14 days before the first day of filing of April 1, 2019. By registering, petitioners must provide information about the intended beneficiary, including whether the beneficiary has a master’s degree from a U.S.-based institution. USCIS will pick the registered petitioners in the H-1B lottery and will provide notification in advance if they are selected. As USCIS notes in its notice, the registration requirement is unlikely to be implemented by March 2019, given the tight timeline needed for necessary rule-making, but it is possible.
Additionally, in its proposed rule, USCIS announced that it will reverse the way that it selects H-1B petitions in the lottery. Currently, as outlined in the Immigration and Nationality Act (“INA”), USCIS must allocate and select the 20,000 visas available for U.S. master’s degrees individuals before selecting the remaining 65,000 visa holders towards the H-1B visa cap. However, in the proposed rule, USCIS indicates that it will conduct the lottery towards the 65,000 cap first, before running the second lottery allocation on the remaining 20,000 visa available. USCIS indicated that the intention was to increase the number of H-1Bs allocated to U.S. master’s degree holders, but it is unclear how U.S. master’s degree holders may be more or less skilled for specific positions than those with bachelor’s degrees or doctorate degrees and should be preferred over others for “specialty occupation” jobs. As noted, the proposed rule appears to run contrary to the INA, and it will most likely be judicially challenged.
While it is unclear whether the proposed changes will be implemented by April 1, 2019, employers must be prepared regardless.
If you have any questions regarding H-1B visas or immigration law updates, please contact Sharon Barney. Sharon is Counsel in Leech Tishman’s Immigration and Family Law Practice Groups. Sharon is based in the firm’s State College office. Sharon can be reached at 814.954.5904 or firstname.lastname@example.org.
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