Major Amendments Proposed for H-1B CAP Process

Major Amendments Proposed for H-1B CAP Process

By Lisa Scott

The U.S. Department of Homeland Security today  proposed amendments to the H-1B visa petition process that would severely affect the ability of U.S. employers to file H-1B visa petitions in what has become known as the “annual H-1B visa lottery.”  https://s3.amazonaws.com/public-inspection.federalregister.gov/2018-26106.pdf

Currently, the U.S. government makes available, every fiscal year (which begins on October 1), 65,000 H-1B visas and an additional 20,000 H-1B visas for international employees who have advanced U.S degrees. (Important to note is that the advanced degree need not be required for the employment offer which forms the basis of the H-1B visa petition). 

Under the current system, employers may file an H-1B visa petition for an international worker who has never held H-1B status  with the U.S. Department of Homeland Security no earlier than April 1 of each year. A “lottery”  to determine which H-1B visa petition will be processed is held if the U.S. Department of Homeland Security (DHS) receives at least, or more than, the allocation of 65,000 and 20,000 H-1B visas in the first five working days of April. Filing receipts for those H-1B visa petitions selected in the lottery are eventually mailed to the H-1B petitioners (the U.S. employer filing the H-1B visa petition) for those H-1B visa petitions chosen in the annual H-1B visa lottery. Prior to the filing receipt being issued many employers and their lawyers anxiously check to see whether the checks for the H-1B visa petition filing fees have been cashed, as a signal that the H-1B visa petition was chosen in the lottery. (Checks for filing fees of those H-1B visa petitions not chosen in the lottery are not cashed and the entire H1B visa petition is eventually returned to the H-1B petitioner).

The amendment  to the H-1B visa petitioning process is being proposed  as part of the April 18, 2017 Executive Order 13788, Buy American and Hire American,  which instructs DHS to “propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system.”Executive Order 13788, Buy American and Hire American, 82 FR 18837, sec. 5 (Apr 18, 2017) (“E.O. 13788”). E.O. 13788 specifically mentioned the H-1B program and directed DHS and other agencies to “suggest reforms to help ensure that H-1B visas are awarded to the most skilled or highest paid petition beneficiaries.” See id. at sec 5(B).

The proposed amendment would create an electronic registration system for H-1B employers seeking to file H-1B visa petitions for H-1B visa beneficiaries who need to be counted towards the annual cap of H-1B visas. 

The proposed amendment would also alter how DHS fills the cap and would, in essence, increase the number of H-1B visa petitions for those beneficiaries who have advanced U.S. degrees by 16%, while lowering the chances of selection of H-1B visa petitions being filed for those who have advanced foreign degrees or bachelor’s degrees.  

The proposed registration period may be suspended for the FY 2020 H-1B visa selection process but the emphasis on selecting H-1B visa petitions for those H-1B beneficiaries who have advanced U.S. degrees will be effective for FY2020 under this proposed amendment.

Under the proposed regulations, an employer who wishes to file an H-1B visa petition that must be counted towards the cap would register electronically with www.uscis.gov providing the required information (listed below) during any designated open registration period, receive an electronic receipt of registration, wait to find out if selected, and then if selected, file a complete H-1B visa petition for the H-1B beneficiary listed in the registration within 60 days of the selection date. 

Specifically, the proposed amendment would:

  • require U.S. employers seeking to file H-1B visa petitions subject to the annual cap to electronically register with DHS at www.uscis.govduring a designated registration period (the designated period would be a minimum period of 14 days)
  • require DHS to provide at least 30 days notice at www.uscis.gov of the designated registration period
  • require DHS to publish the final date of the designated registration process at www.uscis.gov
  • allow DHS to provide for several periods of registration within each fiscal year, none of which will occur more than 180 before the fiscal year begins (October 1)
  • require DHS to announce any reopening of the registration period at www.uscis.gov.
  • require DHS to keep open the registration period until there are a sufficient number of registrations received if a sufficient number of registrations is not received during the designated registration period.
  • require DHS to select among the registrations a sufficient number of petitioners (employers)
  • require DHS to maintain unselected registrations on reserve in the event the cap is not met.
  • require DHS, in the event of a lottery, to first select those employers who are seeking to file an H-1B visa petition for an international employee who possesses an advanced U.S. degree. This would result in more H-1B visa petitions for those international beneficiaries (foreign national who is seeking to be hired by the H-1B visa petitioner under an H-1B visa petition) with advanced U.S. degrees.
  • require H-1B petitioners (employers) to provide the following when registering: employers’ name, employer identification number, mailing address, contact information for the authorized representative, information about the H-1B beneficiary
  • limit one registration per employer for one H-1B beneficiary per fiscal year.
  • require H-1B petitioners (employer) to sign a declaration of intent to file an H-1B visa petition. 
  • provide for investigation of employers who routinely register but do not file H-1B visa petitions if selected.
  • require H-1B employers to register separately for each H-1B visa beneficiary.
  • invalidate all registrations by an employer (which includes related entities branch, subsidiary, affiliate , parent) who violates the limitation on registrations for the that fiscal year.
  • prohibits substitution of H-1B beneficiary. 
  • provides for 60 days filing period after notification of selection during which the H-1B petitioner must prepare and file the chosen H-1B visa petition. 
  • provides that the registration period may be suspended for 2019’s H-1B visa lottery.