As April 1 H1-B Application Deadline Looms, Remember Changes to Rules and Lottery Process

By Franczek P.C.

March 22, 2019

When the USCIS begins accepting applications for H1-B visas on April 1, it will do so under new rules that bring significant changes to the H-1B lottery process. Specifically, changes to the order in which the H-1B lottery selection is conducted will mean workers eligible for the “advanced degree” exemption in the H-1B lottery will have a greater likelihood of selection. Although USCIS plans to implement a new electronic registration system that the rules implement for H-1B application process,  it will not do so for another year.

We reported on the proposed rules in December in an alert that contains helpful background on H-1B visas, the Buy American Hire American Executive Order, which aimed to promote the purchase of American-made goods and the hiring of American workers, and the proposed rule. As the previous alert explains, one important change to the lottery selection order will increase the chances that an international worker with a U.S. master’s or higher degree will be selected in the H-1B lottery than in years past. Conversely, those petitions which are ineligible for the advanced degree exemption have a lower chance of selection under this rule. These changes will be in effect as of April 1.

The rule also provides for implementation of a new registration platform. However, when DHS announced the final rule it indicated that the electronic registration requirement will be suspended for the fiscal year (FY) 2020 cap season. The decision was made based on public feedback about concerns that USCIS complete user testing and ensure the system and process are fully functional before implementation. USCIS will publish a notice in the Federal Register to announce the initial implementation of the H-1B registration process in advance of the cap season in which it will implement the requirement, which we currently expect to be next year.

As a reminder, the lottery process applies to most employers seeking to classify a foreign worker as an H-1B worker for the first time – higher education institutions and certain nonprofit institutions remain exempt from the lottery process, as do H-1B workers seeking to change jobs or other individuals who have previously been counted against the cap and remain eligible for an extension.

Availability of premium processing: In a late breaking announcement last week, USCIS announced that premium processing would be available to H-1B petitions in the upcoming lottery seeking a change of status if the premium process request is filed concurrently with the H-1B petition. Premium processing is not available to petitions seeking consular notification. Additionally, USCIS has not yet announced a date when premium processing will be available for an H-1B petition filed in the lottery seeking a change of status if the premium processing request is not filed concurrently with the petition. Given the significant flux around premium processing, employers and employees filing an H-1B petition in this year’s lottery would be well-served by making the decision to premium process if there are business or other personal reasons to do so.

Finally, premium processing is now available for all other cap-exempt H-1B petitions previously filed with the USCIS or that will now be filed with the agency. This will provide great relief to employers seeking to transfer the employment of new H-1B workers who are nervous about starting their employment based only upon the filing of the petition.