USCIS released a copy of a proposed rule that will be published on December 3, 2018. This proposed Rule, which will have a 30 day comment period, will set up a system that requires employers to pre-register in order to file an H-1B against the H-1B cap and would also change the way that USCIS carries out the lottery for H-1Bs. We will examine the varying aspects of this proposed rule below.
H-1B Registration System
The registration system would require employers to complete a registration PRIOR to the filing of any H-1B applications towards the H-1B cap. The registration period will open up 14 days prior the first day that H-1Bs can be filed (April 1). It will remain open for a period of at least 14 calendar days at which time, if sufficient registrations have been received, USCIS will begin the lottery system (which we will talk about below). What we do not know at this time is:
1) What information will be required in the registration;
2) Will each employer just list the number of H-1Bs they will be filing or is a registration needed for each application you intend to file;
3) Will the system be in effect starting this year, or will they wait until the following fiscal year to begin using the system (there is a provision that allows them to not use the system if there are technical issues).
Under the previous system, USCIS would first select sufficient applications to meet the H-1B Master’s Cap (20,000). USCIS would then take the remaining applications submitted under the Master’s Cap and put those together with applications filed under the regular cap, and then, USCIS would select the regular cap cases (64,0000). While this system gave those with a Master’s two lottery chances, in some ways it also increased the odds for those without a Master’s degree to be selected in the regular cap lottery by automatically ensuring at least 20,000 Masters cases were removed from that lottery.
Under the new system, the Regular Cap lottery will be conducted FIRST. After this lottery is conducted, USCIS will see if there are still sufficient numbers of H-1B Master’s Cap Cases left to fill that cap. If there are, it will conduct that lottery. If not, it will re-open registration just for Master’s Cap Cases and will wait until it has sufficient registrations, then close registration and conduct the lottery. In this way, the administration is hoping that it increases the number of cases selected in which the beneficiary has a higher level degree.
To understand why this change was made, USCIS did indicate that it was to comply with the Buy America initiative signed into law via an executive order by the President. Part of that order required H-1B visas to be made available to those with more education and who are receiving higher salaries. While USCIS cannot change the statutory requirements, this is one easy way for them to comply with this mandate.
At this point, we do not know if USCIS will change the process at all once it receives the comments, or if it will implement it as written. We also do not know if there is sufficient time, or if the system is sufficiently far along, that USCIS will be able to implement the system this fiscal year, or if they will have to wait until the next fiscal year. We will certainly update you once these issues become clear and we know what the final process and timelines will be. In the meantime, please do let us know if you have any questions.
Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.