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Season's Greetings! H-1B Season That Is - December 11, 2018

It’s the time of year when we stop to ponder some of life’s many mysteries. If you are an immigration lawyer or an employer who can’t find enough professional workers, one of those mysteries is why the federal government assigns high-skill work visas (known as H-1Bs) based on a random drawing.

We won’t solve this mystery today, but we will demystify what is going on with the H-1B rules right now, as well as remind you that it is also the time of year to identify candidates for the H-1B “lottery.”

The H-1B “Cap”

H-1B visas are reserved for professionals (persons who have a bachelor’s or higher degree or equivalent) doing a job that requires a degree in a specific field (a “specialty occupation”).

For no other reason than it sounded like a good idea at the time, many years ago Congress chose 65,000 as the number of H-1Bs that would be awarded every fiscal year.  Later, an additional 20,000 H-1Bs were allocated for people who earned U.S. master’s degrees.  This combined total of 85,000 is known as the H-1B “cap.”  Exceptions to the cap exist, but most private-sector employers are subject to it.

Because many more applications for H-1Bs are made each year than the number available, the process has turned into a lottery.  Employers prepare detailed applications, send them to U.S. Citizenship & Immigration Service (USCIS) the first five business days of April, and hope for the best. If the application is not chosen, the filing fees are returned.  That is small recompense for being unable to hire or retain a qualified candidate, who often is already working as a student trainee.

A Change

On December 3, USCIS announced its proposal to change the lottery process this year.  As an agency, it cannot change the allocated number (that can be done only by Congress).  The proposed change is to the process.

First, in an attempt to comply with the “Buy American and Hire American” Executive Order of April 18, 2017, USCIS proposes drawing the lottery in a way that will result in more people with U.S.-earned master’s degree being chosen.  This will comply with the directive to make the H-1B system “merit-based”. 

“Merit” is in the eye of the beholder and is not mentioned in the law that governs H-1B visas.  This change deepens the enigma that is the H-1B program.

Second, USCIS proposes creating an electronic registration system that employers would use to enter the lottery.  If implemented well, this change could be good for employers.

Employers would identify the candidates they would like to hire in H-1B. They would register online and provide the candidate’s name, education level (so the U.S. master’s holders can be favored), the job title and some other information.  From that registration, the lottery selection would occur over a 14-day period announced 30 days in advance.  Employers with lucky numbers would be given 60 days to file a full H-1B petition.

But is it for the better?

Putting aside cynical comments about whether USCIS can create a functioning online registration system (we have doubts based on the Department of Labor registration system), three concerns remain regarding implementation of this rule:

  1. The proposal underestimates the time and work needed to submit an approvable H-1B petition. While the regulatory estimate of 5-7 hours could have been true 10 years ago, it is a fraction of the time now required to address new adjudication policies – formal and informal – implemented over the last several years.

    Sixty days may be sufficient for an employer with one candidate to file an H-1B, but employers with multiple candidates – or lawyers assisting several clients – will not be able to prepare multiple petitions in this short time period. With only 60 days, we will have to do substantial preparation before the lottery.
  2. The relative “ease” of registering will likely induce more employers to access the system, perhaps even those who do not know enough to determine if the candidate is eligible.  USCIS will choose enough petitions to fill in for those who are denied, but it does raise legitimate concerns about wasting government resources, providing candidates with reasonable expectations about their chances and giving businesses the ability to make reasonable plans. 
  1. The USCIS proposal acknowledges that the registration system may not be ready this year. Those who have submitted H-1B petitions in the past know that our work begins months in advance, gathering the requisite information. A 30-day notice period is not enough lead time to allow an employer to wait to see if online registration becomes effective.  If the “old” system will be used this year, preparation must start now.

Our Take

We recommend that employers identify candidates and put together the full packet now.  If the registration comes online in time, we will register and be ready to file if chosen.  We see no choice than to proceed in this manner given the uncertainty in the USCIS announcement.

Comment on the Proposed Changes

We also recommend employers with multiple H-1B applicants file a comment to the proposal that the time frames are inadequate.  Chosen applicants should have 120 days minimum to submit complete packets.   

Based on years of experience with the Department of Labor (DOL) “PERM” registration program, it is critical that attorneys be able to assist employers with registration.  This is not possible in the DOL program and has led to serious problems and expense for some employers.  One problem with the USCIS proposal is that if an employer accidentally registers a candidate twice, all of its H-1B registrations will be deleted. Allowing for attorney assistance will help employers ensure compliance and proper petitioning.

Finally, if preferring people with U.S.-earned master’s degrees will hurt your business (for example, if you need people who were educated outside the U.S. or usually hire bachelor’s degree holders), you should let your perspective be known.

You can comment on the proposed changes on Comments must be submitted by January 2, 2019. 

Please let us know if we can assist you in filing a comment.

And remember, please let us know your H-1B “list” as soon as possible!

Happy Holidays.

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