Employers May Be Impacted by Changes to 2019 H-1B Visa Application Process

By Marylou V. Fabbo - Skoler, Abbott & Presser, P.C.

January 2, 2019

Employers who have sponsored H-1B Visas for foreign workers know that the process to do so is no easy task.  It can take weeks to gather the required paperwork, prepare and submit the Labor Condition Application (“LCA”), post required notices, wait for LCA certification from the Department of Labor, and complete and file the I-129 petition with several, separate checks to the appropriate Department of Homeland Security (“DHS”) location.   Those of you who have the process down to a science should be prepared for change.   DHS recently announced a notice of proposed rulemaking that would alter the process applicable to H-1B cap-subject petitions.

How It Currently Works

The H-1B program allows companies in the United States to temporarily employ foreign workers in specialty occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelors or higher degree in the specific specialty, or its equivalent.  There is a limit on how many H-1B visas will be awarded, referred to as the “cap.”   The cap for specialty occupations was set at 65,000 for fiscal year 2019, and there were an additional 20,000 visas available for workers with advanced degrees from U.S. colleges and universities.  When United States Custom and Immigration Services (“USCIS”) receives more than enough petitions to reach the congressionally mandated H-1B cap – which it always does – a computer-generated random selection process (a/k/a “lottery”) is used to select the petitions that are counted towards the number of petitions projected as needed to reach the cap.  For fiscal year 2020, which begins on October 1, 2019, USCIS will begin accepting cap-subject petitions on April 1, 2019.

New Pre-Registration Process

The proposed rule would require employers that are seeking to file H-1B cap-subject petitions to  obtain an H-1B cap number by electronically registering with U.S. Citizenship and Immigration Services (“USCIS”) during a designated registration period.  The Department of Homeland Security (“DHS”) then would randomly select a number of registrations to fill the number of available H-1B cap-subject petitions.  Those employers who are selected will be given a 60-day window to file the H-1B petition.  Some employers would be on a wait list and provided with the opportunity to file H-1B petitions only if there were not enough to fill H-1B quotas.

It’s seems doubtful that the process will be in effect for FY 2020.  DHS seeks to give itself an out: in case the process isn’t approved and up-and-running that quickly, the proposed rule also includes a provision that would enable USCIS to temporarily suspend the registration process during any fiscal year in which USCIS may experience technical challenges with the H-1B registration process and/or the new electronic system.  Employers should keep their eyes open so they can take advantage of the pre-registration process if approved.

Change in Random Selection Process to Benefit Those with US Master’s Degrees

Instead of the current process of conducting the master’s degree lottery then adding any remaining master’s degree petitions to the regular lottery (65,000), DHS proposes to conduct the regular lottery first, then add the remaining master’s degree beneficiaries to a lottery for the master’s degree cap (20,000).  This change in process may significantly increase the number of H-1B workers with advanced degrees, consistent with President Trump’s stated intention of only employing the best and the brightest.  The change to the selection process may go into effect for fiscal year 2020 even if the pre-registration process does not.

The public can weigh in on the proposed rule until January 2, 2019.  We will keep you posted of developments.