In follow up to last month’s announcement of proposed changes to the H-1B visa selection process by U.S. Citizenship & Immigration Services (USCIS), the Department of Homeland Security has finalized its rule reversing the order in which USCIS will select H-1B cap-subject petitions in the H-1B visa lottery.
While the H-1B cap will remain at 85,000, this new regulation will reverse the lottery order in which USCIS selects H-1B petitions for adjudication, in order to increase the amount of H-1B visas awarded to foreign nationals with U.S. master’s degrees and higher. Under the previous lottery system, USCIS would first conduct a lottery for 20,000 H-1B visas for individuals with a U.S. master’s degrees and higher (the “advanced degree cap”), and then those individuals with advanced degrees who were not selected in that lottery were added to the pool of 65,000 H-1B visas (the “regular cap”), for another chance to be selected with individuals who only have a bachelor’s degree. In accordance with this new rule, USCIS will now conduct the regular cap lottery first and include all advanced degree holders. Those with advanced degrees not selected in the“regular cap” will thereafter be placed in a second lottery (the “advanced degree cap”), if there are enough advanced degree holders to meet the advanced-degree lottery.
In accordance with the Trump administration’s previous announcements for employment-immigration reforms, USCIS believes this change to the lottery system will increase the chances of H-1B visas being awarded to individuals with U.S. master’s degrees and higher.
While USCIS announced that this change to the H-1B visa selection process will be implemented for this year’s H-1B visa lottery, USCIS will be postponing its proposed mandatory online registration for U.S. employer’s filing H-1B petitions. As such, employers and foreign nationals should be preparing their H-1B visa petitions NOW (as they have done in previous years) in order to timely have those petitions filed on April 1st.
Additionally, USCIS announced this week they have resumed “premium processing” for all H-1B visa petitions that remain pending from the April 2018 lottery. USCIS had temporarily suspended premium processing for most H-1B petitions last year, but has removed the suspension, as of now, for only H-1B visa petitions that remain pending from the April 2018 lottery. While premium processing is still currently unavailable for H-1B transfers, amendments, and extensions with different employers, we may see premium processing for these cases resume around February 19th.
Employers seeking to hire foreign national employees this year should assess their upcoming workforce needs and identify those who will require H-1B visa sponsorship NOW. These individuals may include:
· New graduating foreign students in the U.S.
· Overseas individuals seeking to start work in the U.S.
· Foreign individuals in the U.S. already working under a different nonimmigrant status for a different employer and are seeking to change jobs
Failure to file your H-1B petition on April 1st may jeopardize your chance at securing an H-1B visa for your employee. After the 2019 H-1B visas are gone, employers will have to wait until April 1, 2020 to file H-1B petitions again, and foreign employees may lose their lawful status and authorization to work. The clock is ticking…don't delay!
If you have any questions about the H-1B visa process, contact me.