USCIS H-1B Deadline Approaching

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Update on H-1B Filings

Each spring, the H-1B visa “lottery” causes the H-1B visa to become a hot topic among employers, F-1 students on Optional Practical Training, and foreign-born professionals seeking to work in the United States. In this update, we will summarize the latest H-1B news and discuss its potential impact on current and prospective H-1B employers and employees.

On April 6, 2018, the United States Citizenship and Immigration Services (“USCIS”) announced that it reached the 65,000 visa “cap” on H-1B specialty occupation visas for fiscal year 2019. USCIS also announced that it reached the additional 20,000 visa “master’s cap” for specialty occupation workers who earned advanced degrees in the United States. USCIS received over 190,000 H-1B visa petitions (regular and master’s cap) between April 2, 2018 and April 6, 2018, which is a slight decrease from the 199,000 H-1B petitions USCIS received in 2017. This is the sixth year in a row that the H-1B visa cap was reached within five days.

On December 3, 2018, USCIS proposed two separate changes to the H-1B nonimmigrant worker program

  1. It was proposed a rule that for the Fiscal Year of 2020 that would add an initial electronic registration requirement for cap-subject H-B. The electronic pre-registration would last at least 14 calendar days. Each electronic registration filed by a petitioner will be associated with a specific beneficiary (prospective H-1B nonimmigrant worker). This would reduce the initial burden of preparing and processing paper cap-subject H-1B petitions because a petitioner cannot file a paper H-1B petition until the petitioner’s electronic registration for a specific beneficiary has been selected.
  2. USCIS proposed a change under the existing cap-subject H-1B filing procedure, USCIS first selects H-1B petitions filed under the advanced degree exemption (20,000 visas for foreign nationals who hold U.S. master’s or higher degrees); H-1B petitions eligible for the advanced degree exemption that are not selected in the initial round are then combined with the general pool of 65,000 regular cap H-1B visas (for foreign nationals who hold U.S. bachelor’s degrees or their equivalent). We are waiting for confirmation on the proposed rules. USCIS has stated that it may temporarily delay or suspend the implementation of the electronic registration process if there is insufficient time to implement the new system by April 1, 2019, which is when H-1B petitions may be filed for employers seeking to employ H-1B workers starting October 1, 2019.

On January 11, 2019, President Trump tweeted:

“H-1B 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. We want to encourage talented and highly skilled people to pursue career options in the U.S.”

We are unsure if this is part of President Trump’s Executive Order 13788 (“Buy American and Hire American”) directed the Department of Homeland Security and other agencies, in part, to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” Accordingly, USCIS states that the proposed rule is intended to favor highly educated workers with advanced degrees from U.S. institutions of higher education entering the U.S. workforce under the H-1B program. USCIS has not elaborated on what these changes could be.

Please contact your Margaret W. Wong & Associates attorney if you have any questions regarding the H1B proposed rules or filings.