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New H-1B Lottery System Proposed

The Department of Homeland Security (DHS) is proposing a rule change to the H-1B visa program. Specifically, this change would cover two aspects of the way DHS selects which initial immigration petitions to select to adjudicate.

Recap of the current process:

H-1B visas are employment-based nonimmigrant visas. Employers may submit petitions to hire workers from abroad to fill specialty occupations for up to three years in each approval period. Up to 65,000 new visas for an H-1B nonimmigrant worker are permitted each fiscal year, with an additional 20,000 permitted exclusively for those with degrees from U.S. grad school programs. Employers may submit petitions for start dates up to 180 days in the future. New H-1B visas become available on October 1st every year, so April 1st is the earliest employers may submit petitions to employ foreign nationals under this program.

In the past, demand for these visas, while still high, was manageable enough for supply of visas to last until several weeks past April 1st. However, in recent years, demand is so high that USCIS has been forced to implement a system in which petitions are accepted for one week only. During this week, 170,000 to 220,000 petitions are received. Because of this, USCIS must implement a computer drawing to randomly select petitions to consider. Currently, the set of qualifying “master cap” petitions are placed in a lottery for the 20,000 set aside for them, and then those not selected in this process are added with those not qualifying for the master cap and this combined group are placed in a lottery for the 65,000. The cases selected in these lotteries are then adjudicated, and the petitions not selected are physically returned to the petitioners,

Better Chances for Master’s Cap

Under the proposed change, all petitions would undergo a lottery for the 65,000 petitions, and if there are more than 20,000 remaining master cap petitions that were not selected in the first lottery, they would undergo a lottery for those visas. In most scenarios, performing the lotteries in this way significantly increases the odds for master cap petitions. The purpose of this rule change is to increase the quality of the foreign talent being input into the national economy. However, the legality of increasing the odds for master cap petitions beyond what the regulations currently call for using executive action is uncertain. It may require an act of Congress to increase the influence of merit on the distribution of visa numbers. One disadvantage towards favoring master's degree recipients to this extent is the exclusion of some medical professionals. The MD and most nursing certifications and degrees are not master's programs, and further disadvantaging those with these credentials in the H-1B lotterymay exercerbate challenges in the U.S. healthcare system.

H-1B Preregistration

The other change included in this action is one meant to reduce the number of petitions physically mailed to USCIS and ostensibly reduce the costs of the program on petitioners. Instead of performing the lottery process on petitions received, USCIS is proposing to institute an electronic pre-registration process in which employers will enter basic data into an online system including

  1. Basic information about the employer, such as name and EIN;
  2. The authorized representative, such as title and correspondence;
  3. Beneficiary details such as name nationality, gender, and passport number;
  4. Beneficiary’s education info; and
  5. Other information required to process registration.

USCIS would then use the lottery system as described above to invite chosen employers to submit form I-129 in the manner currently used. Neither of the changes described pose to affect how cases are processed once they are selected.

It would not be required to submit Labor Condition Application information at this stage. However, the employer would be required to attest the content of their electronic submission is true and accurate and that they intend to employ the beneficiary in a manner consistent with regulation. The employer would be prohibited from attempting to register the same beneficiary more than once. This prohibition would also prevent an employer from using parent companies, subsidiaries, affiliates, or other related relationships with other employers to fraudulently increasing the odds of their candidates being selected. If an employer is found to be attempting to do this, they face losing all of their registrations for that year.

The government has implied that the use of this system will allow them to reduce filing fees and increase system efficiency, potentially reducing processing times. They also say that the registration system has the advantage of allowing for additional employers to be invited to submit form I-129 if it is found that additional visa numbers are available. This system could be advantageous on these grounds, however there are some potential concerns with this system. If the system allows any employer to submit a registration easily, the number of requests for registration could be so high that the probability of success becomes extremely low. On the other hand, if the government imposes strict eligibility criteria prior to having the complete case, it could result in unfair pre-adjudication.

Immigration law is in constant flux. It is crucial that employers are fully prepared for H-1B filing season, and now is the time to start preparing. Our firm has over 25 years of experience handling complex H-1B cases. Contact us for a consultation.

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