DHS Proposes Changes to the H‑1B Visa Lottery Process

by Joseph McKeown

The Department of Homeland Security (DHS) announced last week a notice of proposed rulemaking that would require petitioners seeking to file H-1B cap-subject petitions to first electronically register with US Citizenship & Immigration Services (USCIS) during a designated registration period. Under this proposed rule, USCIS would also reverse the order by which USCIS selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, a move the agency says would result in “a more meritorious selection of beneficiaries” by increasing the number of individuals with a master’s or higher degree from a US institution of higher education selected in the H-1B cap lottery. This change, DHS says, is in accord with President Trump’s Buy American and Hire American executive order, signed April 18, 2017, that instructs agencies including DHS to “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

The H-B, as we’ve discussed before, is a nonimmigrant visa for foreign nationals who will be employed temporarily in a “specialty occupation,” or as fashion models of distinguished merit and ability. A specialty occupation is defined as one that requires a bachelor’s degree, or the equivalent experience, in order to perform the duties of the position offered. In past years, when USCIS has received more than enough petitions to reach the congressionally-mandated H-1B cap (set at 65,000 for regular cap cases and 20,000 for master’s exemption cases), the agency has used a computer-generated random selection process (aka, the lottery) to select the petitions. Additionally, in years past, the advanced degree exemption has been selected prior to the H-1B regular cap cases. The proposed rule would reverse this and instead run the H-1B regular cap lottery first (which would include master’s cap cases), and then select petitions towards the advanced degree exemption, increasing  the chances that beneficiaries with a master’s or higher degree from a US institution would be selected by an estimated sixteen percent (which approximately works out to an additional 5,340 workers selected).

The rule further proposes that petitioners be given at least a fourteen calendar day period at least two weeks prior to April 1 to submit the free online registration (one registration for each beneficiary) that would include information about the petitioner and beneficiary as well as attorney information along with a G-28. USCIS will provide at least thirty days notice prior to the opening of the online registration window. With the online registration system employers will not have to pay a filing fee or file a Labor Condition Application (LCA). USCIS will notify employers which H-1B petitions are chosen in the lotteries and allow approximately two months for submission of the full H-1B petition with appropriate filing fees and an approved LCA. If necessary, USCIS will reopen the registration period if more cap numbers are available.

By enacting electronic registration, USCIS argues the overall costs for petitioners would decrease and the resulting program would be more efficient and cost-effective for USCIS. The agency states: “The proposed rule would help alleviate massive administrative burdens on USCIS since the agency would no longer need to physically receive and handle hundreds of thousands of H-1B petitions and supporting documentation before conducting the cap selection process. This would help reduce wait times for cap selection notifications.”  

While the prospect of an initial electronic registration is welcome by many, some immigration practitioners question if USCIS will be ready for the FY 2020 cap, which filing period would normally begin April 1, 2019. To that end, the proposed rule includes a provision to allow USCIS to temporarily suspend the registration process during any fiscal year if USCIS experiences “technical challenges with the H-1B registration process and/or the new electronic system.” While USCIS says they are “actively working to develop and test the electronic registration system” USCIS will delay this electronic registration if it is not ready in time for FY 2020. Public comments may be submitted starting Monday, December 3, and must be received during the shortened comment timeframe which ends on January 2, 2019.