11/17/2018 - New Registration System for H-1B?



The H-1B visa classification is one of the most popular work-authorized temporary work visas available.  H-1Bs are available where there is a U.S. employer; where the position offered is a “specialty occupation,” that is, one cannot perform the duties without having a degree in a specific field of study; where the individual has the degree (or equivalent work experience) in that specific field; and where the employer is willing to pay a required wage.  For now, there is generally no labor market test.  The H-1B is so popular that individuals not already in H-1B status must have their employers file a petition in a lottery each spring for a chance at obtaining an H-1B number.  There are only 20,000 numbers available each year for those with advanced U.S. degrees and 65,000 for all others.  About 30-35% of those trying for a number are selected for processing, and there is no guarantee that the government would approve the petitions based on their merits due to shifting adjudicatory standards under the current administration. 
 
There have been talks over the years regarding changing the H-1B system given the demand for them.  One of the more talked about options is to have a pre-registration system for employers so that employers would not have to complete the whole H-1B filing process, only to find out through a lottery system that their petitions were not chosen for processing.  This fall, when the Department of Homeland Security (DHS) provided an overview of some of the upcoming regulatory changes, it indicated the following:
 
The Department of Homeland Security proposes to amend its regulations governing petitions filed on behalf of H-1B beneficiaries who may be counted under section 214(g)(1)(A) of the Immigration and Nationality Act (INA) ("H-1B regular cap") or under section 214(g)(5)(C) of the INA ("H-1B master's cap"). This rule proposes to establish an electronic registration program for petitions subject to numerical limitations for the H-1B nonimmigrant classification. This action is being considered because the demand for H-1B specialty occupation workers by U.S. employers has often exceeded the numerical limitation. This rule is intended to allow U.S. Citizenship and Immigration Services (USCIS) to more efficiently manage the intake and selection process for these H-1B petitions.
 
While the DHS had indicated that they would be publishing the new rule in October 2018 for the public to comment, and so that there would be enough time to implement it for the upcoming H-1B lottery (April 1, 2019), to date, nothing has been published yet.  What is of interest, however, is that on November 16, during a public meeting, USCIS Director Francis Cissna said that DHS is still aiming to publish a rule in time for this upcoming H-1B lottery.  Details of this rule have not been released yet, but our sources, the American Immigration Lawyers Association (AILA) believes that the rule will mirror what was proposed back in 2011 whereby an employer would undergo an electronic registration process that would take about 30-minutes, then USCIS would select the number of registrations that it believes would use up the allotment of H-1B numbers, and then notify the employer that it may proceed with preparing and filing both steps of the H-1B process (the ETA Form 9035 Labor Condition Application and the Form I-129 Petition for Nonimmigrant Worker).
 
We will keep a close watch on this developing story.  In the meantime, regardless of the actual procedure, we do encourage all employers to look ahead and consider whether any of their current employees and any upcoming hires will need an H-1B number.  These typically are those who are not currently in H-1B status, especially recent international student graduates (F-1s).
 
The above information was provided for educational purposes only.
 

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