Proposed Rule Would Change H-1B Petition Process

The Department of Homeland Security (DHS) has released an advance copy of a proposed rule that will substantially change the H-1B petitioning process. The rule will be officially published in the Federal Register on December 3, 2018, with public comments accepted until January 2, 2019.

H-1B visas are temporary professional work visas for those working in positions that require at least a bachelors degree or higher, or specialized knowledge.  Many of these positions are subject to a 65,000 visa cap for those with bachelors degrees or higher, with an  additional 20,000 visas available to those with at least a masters degree.

The number of employers seeking H-1B visas for foreign-born employees chronically exceeds the number of cap-subject visas available.  As a result, for years U.S. Citizenship and Immigration Services (USCIS) has not allowed employers to file their H-1B petitions until April 1st for positions beginning on October 1st, the next fiscal year.  The visa cap has been reached within five days and selection of petitions to process has been done by lottery..

The proposed rule would require all employers who intend to file a petition for an H-1B employee to register in advance of the first allowed filing date.  The proposed rule states that USCIS will then notify the employer that it will be allowed to submit the petition, or that the cap has been reached.  In theory, this change would save employers the time and expense of preparing and submitting an H-1B petition, only to be shut out when the cap is quickly exceeded.

The proposed rule also would change the order in which accepted H-1B petitions are processed, purportedly to increase the number of visas going to those with masters degrees or higher, rather than to those with bachelors degrees.  However, the rule appears to ignore how the Immigration and Nationality Act dictates that how visas will be allocated among those with masters and bachelors degrees, and as applied, could result in fewer individuals with masters degrees getting H-1B visas than Congress intended.  This analysis by the Cato Institute describes some of the problems with the proposed rule in more detail.

Employers who use H-1B visas should speak with their immigration counsel to discuss the impact this rule change would have on their H-1B filing process, and should consider filing a public comment once the proposed rule is published.