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USCIS Publishes Proposed Rule Amending H-1B Filing Process

USCIS published a proposed rule today (12/03/2018) containing two separate proposed changes to the H-1B nonimmigrant worker program. First, the proposed rule would add an initial electronic registration requirement for cap-subject H-1B petitions. Second, the proposed rule would change the order in which USCIS selects beneficiaries under the H-1B cap and advanced degree exemptions. The deadline to submit comments regarding the proposed rule is 01/02/2019.

Proposed Electronic Registration Requirement for H-1B Petitioners

·         The proposed rule will break the cap-subject H-1B petition process into two stages. First, there will be an initial registration period where employers seeking to file H-1B petitions under the regular cap and advanced degree exception (“petitioners”) will be required to electronically register with USCIS. Each electronic registration filed by a petitioner will be associated with a specific beneficiary (prospective H-1B nonimmigrant worker). At the close of the registration period, if the number of H-1B registrations exceeds the number required to reach the cap, USCIS will randomly select electronic registrations until the cap is reached. USCIS will notify petitioners whose registrations have been selected that they are eligible to file a cap-subject H-1B petition on behalf of the beneficiary named in the electronic registration. A cap-subject H-1B petition can only be filed on behalf of a beneficiary whose registration was selected by USCIS.

·         The electronic registration procedure is supposed to 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.

·         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.

 

Proposed Reversed Order for Selecting Advanced Degree Exemption H-1B Petitions

·         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).

·         Under USCIS’s proposed rule, USCIS will reverse the order of the selection process by first counting all cap-subject H-1B petitions, including those that may be eligible for the advanced degree exemption, towards the 65,000 regular cap visa allocation until the regular cap is reached. Once the 65,000 regular cap is reached, USCIS will then count the petitions eligible for the advanced degree exemption (but were not selected under the regular cap) toward the 20,000 advanced degree exemption allocation.

·         USCIS estimates that the proposed rule, once implemented, will result in an increase in the number of H-1B beneficiaries with an advanced degree from a U.S. institution of higher education whose petitions are selected for adjudication by 16 %, or 5,340 workers.

·         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.

 

Please contact your Margaret W. Wong & Associates attorney if you have any questions about this proposed rule.

Joseph C. Fungsang, Esq. is an immigration attorney in the New York City office of Margaret W. Wong & Associates LLC.

Gordon Landefeld