DHS Announces Proposed Reform to H-1B Lottery Process

The U.S. Department of Homeland Security (DHS) announced significant proposed changes to the H-1B visa lottery program, including:

1. Give further priority to those with U.S. advanced degrees (including U.S. master’s and higher degrees).

2. Change the timing and cadence of H-1B petition submission.

3. Require employer pre-registration.

On November 30, 2018, DHS released the much anticipated proposal for reforming the H-1B lottery (cap) process for Fiscal Year 2020 and beyond. To be selected in the H-1B lottery, the proposed rule requires employers to pre-register electronically with the U.S. Citizenship and Immigration Services (USCIS) before they can file full H-1B petitions with the federal agency. Although the proposal is not the final regulations yet, it brings forth drastic changes, including:

1. How employers would file H-1B cap petitions on behalf of their employees; and

2. How H-1B beneficiaries with U.S. advanced degrees would have better chances of getting selected in the lottery.

After a 30-day comment period (as part of the rulemaking process), DHS will review comments and may make changes before publishing the final rule with an effective date.

Given the uncertainty concerning USCIS’s ability to implement the pre-registration system by 4/1/2019, employers are encouraged to approach the FY2020 H-1B lottery season in the same manner as in prior years.

1. Changes to application procedures. DHS is proposing to require employers to first electronically pre-register with USCIS before filing H-1B cap petitions. USCIS would then conduct a lottery and select enough registrations to meet the H-1B cap numbers. Some highlights of the entire application process include:

Registration Period

• The electronic registration process would start at least 14 calendar days before April 1st. The registration process would last for a minimum of 14 calendar days.

• USCIS would give the public at least a 30-day advance notice via its website before opening the registration period.

• Only one registration per individual is permitted for employers during the same fiscal year. Information required for registration may include: (1) the employer’s name, Employer Identification Number, and employer’s mailing address; (2) the employer’s authorized representative’s name, job title, and contact information; (3) the beneficiary’s full name, date of birth, country of birth, country of citizenship, gender, and passport number; (4) if the beneficiary has obtained a U.S. advanced degree; (5) the employer’s attorney or accredited representative, if applicable; and (6) any additional basic information requested by the registration system or USCIS.

• DHS is not proposing a separate fee for pre-registration at this time.

• DHS may closely monitor whether selected registrations actually result in filing of H-1B cap petitions. DHS would investigate any pattern/practice of abusing the registration system and could hold employers accountable.

• If USCIS determines it is necessary to reopen the registration period due to insufficient demand, the agency would announce the start of the reopened registration period on its website. However, USCIS would select from its reserve system (see below) before needing to reopen the registration period.

Selection of Registrations

• Relying on historical data, USCIS would project a number above the available 85,000 H-1B visa numbers and use the projection to determine the number of registrations to select for a given fiscal year.

• Once the lottery is conducted, unselected registrations would go into a reserve system. As USCIS is obligated to use up all available visa numbers, the reserve system would be helpful for the federal agency to draw from the unselected registrations to account for subsequent withdrawn, denied, or revoked H-1B cap petitions, or selected registrations that did not result in actual cap filings.

Petition Filing Following Selection

• Employers with selected registrations would have at least 60 days to file full H-1B petitions with USCIS. DHS anticipates that there would be several filing periods for each fiscal year.

2. Increased chances for U.S. advanced degree petitions to be selected in lottery. This second major proposed change would be helpful for companies with many employees who hold U.S. master’s or higher degrees. USCIS is proposing to reverse the sequence in which the lottery is conducted – requiring the lottery be conducted first for all H-1B registrations (including all regular cap and U.S. advanced degree cases); and for those U.S. advanced degree registrations not selected, USCIS would conduct another round of lottery to select enough registrations to meet the advanced degree quota.

This change introduces the “merit-based” aspect of the H-1B cap reform as USCIS projects a 16 percent increase (or 5,340 workers) annually in the number of U.S. advanced degree petitions selected in the lottery. This projection supports President Trump’s executive order to award H-1B visas to the most-skilled beneficiaries.

DHS is also proposing that even if the pre-registration process is temporarily suspended, USCIS would still reverse the sequence in which the H-1B lottery is conducted to give U.S. advanced degree cases better chances of success.

I will continue to monitor the proposed rule and developments and will provide an update when the final rule is published.

Disclaimer: No attorney-client relationship is created by the use of this article. This article is for informational purposes only, and shall not be taken as legal advice on any particular set of facts or circumstances. Please seek the advice of a competent attorney to assist with your specific immigration questions. Any reference to prior results does not guarantee or imply similar/same future outcomes. This article may provide links to third-party websites; and I assume no responsibility for the accuracy of the contents of such websites. Any views expressed in this article are not the views of my employer.