On January 31, 2019, the Department of Homeland Security published a final rule changing the application method for H-1B temporary professional or specialized knowledge visas, and how U.S. Citizenship and Immigration Services (USCIS) will process them.
H-1B employment visas are available in an extremely limited supply. Only 65,000 cap-subject petitions are available to those with at least a Bachelors degree, with another 20,000 available to those holding a Masters degree or higher.
To handle the excess demand, employers were not allowed to file petitions prior to April 1st for positions starting on or after October 1st, the start of the next fiscal year. Typically the cap has been reached within five days, with a lottery conducted to select which petitions will be considered. Those not selected were rejected and returned to the employers.
The final rule’s new process will require employers to register with USCIS in advance of April 1st for each position for which they intend to seek an H-1B visa. USCIS would then essentially conduct the lottery from the registrations received. Only those employers whose registrations are selected will be invited to submit the full H-1B petition, within 90 days of receiving notification of their selection. In theory, this will save employers the time and expense of fully preparing an H-1B visa petition that later gets shut out in the lottery.
Because this new registration system will need testing, USCIS will suspend its implementation and make it effective for FY 2021 H-1B petitions. Employers planning to seek H-1B visas for FY 2020 will file complete petitions with USCIS as of April 1, 2019, as usual.
The new rule will also change how USCIS processes H-1B petitions, counting all applicants towards the 65,000 cap before beginning to count petitions towards the 20,000 cap for those with Masters and higher. USCIS estimates this will increase the number of Masters or higher degree holders who receive H-1B visas by 16%.
This latter change, effective on April 1, 2019, will apply to FY 2020 petitions. It could make it harder for employers in fields where professional positions frequently require only a Bachelors degree to succeed in obtaining an H-1B visa for their intended employee.
Employers seeking more details should speak with their immigration counsel.