USCIS Announces Major Changes to H-1B Program

On January 31, 2019, U.S. Citizenship & Immigration Services (USCIS) published a final rulemaking two significant changes to the H-1B visa program. The rule (1) adds an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions, and (2) it reverses the order by which USCIS will select petitions under the regular H-1B and the advanced degree quotas.

H-1B visas are for employees working in a “specialty occupation,” which generally means that the employee has a college degree and works in a position that requires a degree in a specific field (such as computer science, engineering, accounting, education, etc.)  H-1B’s are one of the most popular categories of work visas.  Congress, however, has imposed a strict numerical limit on the number of new H-1B visas that can be issued each year (the “H-1B cap”).

Under the H-1B cap, only 65,000 new visas are available each year for employees who possess only a bachelor’s degree or who received an advanced degree at a college outside the United States.  An additional 20,000 visas are available for employees who have earned a U.S. Master’s degree or higher.

High Demand for Skilled Workers in the United States

Due to the demand for highly-skilled workers, USCIS receives thousands of more petitions each year than visas are available.  For example, last year USCIS received 190,098 petitions for the 85,000 available visas.  To balance the high demand for H-1B visas against the number of visas available, USCIS only accepts new H-1B applications for a 5-day period beginning April 1 each year.  USCIS then conducts a lottery among the cases filed to determine which applications will be accepted and processed and which will be returned to the employer.

The changes announced by USCIS on January 31 impact how the lottery will be conducted this year and going forward.  The first change is that beginning in 2020, employers will be required to electronically register each potential H-1B employee by providing USCIS with basic information about the person and the position.  USCIS will conduct the H-1B lottery from the pool of timely-filed electronic registrations and only those who are selected will be eligible to file a complete application and have USCIS issue a decision.

It is important to note that the new electronic registration process will NOT be used for H-1B petitions filed in April of this year.  Rather, employers need to be prepared to file by April 1, 2019, complete petition packages for all new H-1B employees.  It is expected, as in past years, that nearly 200,000 applications or more will be filed and USCIS will conduct a lottery among the cases received.

Changes to H-1B Lottery

The second major change in the new rule is how USCIS will conduct the lottery among U.S. Master’s degree cases and regular H-1B cases (where the employee does not possess a U.S. Master’ degree or higher.)  In years past, USCIS would conduct the lottery for the Master’s cap cases first.  Any applications not accepted in the Master’s lottery would then be placed in the regular H-1B lottery.

Beginning with this year’s H-1B cap, USCIS will reverse the order and conduct the regular cap lottery first and then conduct the Master’s lottery.  USCIS has estimated that this change will result in an increase of up to 16% (or 5,340 workers) in the number of petitions selected for H-1B employees with a U.S. Master’s degree or higher.  As such, employees who possess only a bachelor’s degree, or a non-U.S. Master’s or higher degree will have a decreased chance of being selected in the H-1B lottery.  This rule change could disadvantage U.S. businesses that employ professionals in fields where a Master’s degree is not usually required, such as teaching, accounting, marketing, architecture, and many medical occupations.

Contact a Virginia Immigration Attorney

The deadline to file H-1B petitions for this year’s cap is rapidly approaching.  If you want to retain your valuable, highly skilled workers, please contact the office of Virginia immigration lawyer Jeffrey Van Doren.  Mr. Van Doren has filed thousands of H-1B petitions during his career and will be able to guide you through what is becoming an increasingly difficult application process.