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Trump Administration Proposes Major Changes to H-1B Visa Program

The Department of Homeland Security (DHS) has proposed major changes to the H-1B visa program, including a new rule that would require businesses seeking to sponsor foreign workers to electronically register their petitions with U.S. Citizenship and Immigration Services (USCIS) two weeks prior to the start of the filing period. The proposal would also reverse the order in which H-1B petitions are typically selected, in favor of those applicants who hold advanced degrees from U.S. institutions.

The H-1B visa is a temporary visa that allows U.S. companies to hire foreign workers in “specialty occupations” when there are not enough skilled American workers to fill these jobs. A foreign worker must hold at least a bachelor’s degree or its equivalent. Congress has allocated 65,000 visas every year for individuals who hold bachelor’s degrees and an additional 20,000 visas for those who hold master’s degrees or higher from a U.S. college or university. Every year, USCIS receives more petitions for the H-1B program than there are visas available. In fact, USCIS typically reaches the H-1B quota within the first five days of the application window being open. Thus, the agency holds a lottery to randomly select which H-1B petitions it will process. Under a H-1B visa, those authorized to work in the U.S. are able to do so for three years, with the possibility of a three-year extension.

Under the proposed regulation, companies seeking to file H-1B petitions would be required to register electronically with USCIS two weeks before the H-1B filing window opens each year, typically the first Monday in April. USCIS would then conduct the annual H-1B lottery from the pool of electronic registrants and select the necessary number of applications to meet the 85,000 visa cap. Companies whose petitions are selected in the lottery would be notified that they are eligible to file an H-1B petition and would need to do so within 60 days. Under this proposal, a petitioner therefore would need to wait until they have been notified of selection before submitting the corresponding H-1B petition on behalf of the beneficiary named in the electronic registration. Under the current system, a company submits a H-1B petition along with evidence and supporting documentation for each beneficiary they seek to sponsor all at one time.

The second major change proposed by DHS is to reverse the order by which the agency selects H-1B petitions under the H-1B cap and the advanced degree exemption. Under the current system, applicants with advanced degrees are placed in the 20,000-visa “master’s cap” pool. Those applicants who are not selected in the first round are placed in the general cap pool of 65,000 visas. Under the new proposed rule, all applicants, including those with advanced degrees, would be placed in the general applicant pool. Once the 65,000-visa cap is reached, any remaining applicants with advanced degrees would end up in the 20,000-visa “master’s cap” pool. USCIS projects that this change would result in a 16% increase in the number of selected beneficiaries with a master’s degree or higher from a U.S. institution of higher education.

The proposed changes to the H-1B program are consistent with President Trump’s April 2017 Buy American, Hire American Executive Order, which mandated DHS to “propose new rules and issue new protect the interests of [U.S.] workers in the administration of our immigration system.” The proposed changes to the H-1B program would limit the availability of visas to those who do not hold advanced degrees from U.S. universities. While prioritizing advanced degree professionals is not a bad idea, the proposed changes could have unintended consequences - penalizing U.S. businesses who employ professionals in fields where a master's degree is not typically required, such as public education, accounting, and architecture. The healthcare sector, which relies heavily on foreign physicians to supplement a shortage of U.S. doctors, could also be disadvantaged, as many such physicians complete their medical education overseas before seeking employment in the United States.

The 30-day notice and comment period will remain open until January 2, 2019. USCIS has indicated that it would like to finalize the rule changes prior to the opening of the upcoming H-1B filing season, slated to begin on April 1, 2019.

Sources: DHS Proposes Changes to the H-1B Visa Lottery Process, AILA Doc. No. 18111639 (12/6/2018); AILA Explains: DHS’s Proposed Changes to the H-1B Lottery Process, AILA Doc. No. 18121730 (12/17/2018).

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