DHS Proposes Merit-Based Rule for More Effective and Efficient H-1B Visa Program
Jan 16, 2019
On November 30, 2018, the Department of Homeland Security (DHS) announced a Notice of Proposed Rulemaking (hereinafter the “Proposed Rule”) that would require petitioners seeking to file H-1B cap-subject petitions to first electronically register with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period. Under the proposed rule, USCIS would also reverse the order by which USCIS selects H-1B petitions under the H-1B cap and the advanced degree exemption, and introducing a more meritorious selection of beneficiaries.
According to the Proposed Rule, USCIS will create an Electronic Registration System for H-1B petition process. The Employer will be required to provide basic information about the Employer and the Employee (H-1B Beneficiary) through the system. If the petitions exceeds the statutory cap, USCIS will run a lottery process from the registered cases to select H-1B petitions. Then, the Employer who are notified being selected will submit complete H-1B petition to USCIS. USCIS expects that shifting to electronic registration would reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process for USCIS. Conceptually, electronic preregistration is an idea with merit, but there are a number of unanswered questions about the process, e.g. it’s not clear how much information would be needed at the preregistration stage
Second,the order of the two H-1B lotteries would change. All H-1B applicants—including those who have advanced degrees—will now enter the “general pool” of 65,000 visas. Once this cap is hit, any remaining applicants with advanced degrees will end up in a 20,000-visa “master’s cap” pool. This change might increase the number of H-1B holders with advanced degrees by as much as 16 percent. By “flipping” the pools, those with a master’s degree or higher have two successful shots at a successful H-1B application. This change aligns with the Trump administration’s order that the Department of Homeland Security and other agencies “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.
While USCIS has been actively working to develop and test the electronic registration system, if the rule is finalized as proposed, but there is insufficient time to implement the registration system for the FY 2020 cap selection process, USCIS would likely suspend the registration requirement for the FY 2020 cap season.
U.S. President Donald Trump said on January 11, 2019 via Twitter that “H1-B (sic) holders in the United States can rest assured that changes are soon coming which will bring both simplicity and certainty to your stay, including a potential path to citizenship.” It’s unclear what prompted Mr. Trump’s tweet. It could reference the aforementioned lottery reform. But immigrant experts fear the new system could be hastily implemented and have called for the administration to delay the rollout to ensure it will function properly. It’s unclear whether the system would be ready in time for the spring, which is when H-1B registrations are due.< Back