By Farhad Sethna, Attorney, © 2018
The USCIS published a notice on November 30, 2018 in the Federal Register stating that it would select H-1b cases to process through a “pre-registration” process commencing Fiscal Year 2020 (that is, for new cap-subject H-1b applications filed April 2019 (since the federal FY 2020 actually begins October 1, 2019).
As background, only 85,000 new H-1b’s can be issued every fiscal year. Of that, 20,000 are reserved for H-1b applicants who have US-issued Master’s or higher degrees, and 65,000 are issued to any and all applicants, including US master’s degrees, or master’s or bachelor’s or other degrees issued by non-US educational institutions.
Each of the last 5 years, the 85,000 cap has been oversubscribed, with many applications not being chosen for processing, thus dashing those employer’s and prospective employees’ hopes of securing an elusive H-1b classification.
In the past, the USCIS “supposedly” conducted a lottery by first selecting employers with advanced degree candidates for processing. Then, once the 20,000 had been selected, the USCIS would open the remaining 65,000 to all remaining applicants.
Now, the USCIS is taking a different approach – again, supposedly – in keeping with the administration’s “Buy American, Hire American” directive to select the highest qualified and best paid foreign workers for H-1b positions. Under this different approach, the USCIS will now first count applicants toward the “general” cap of 65,000. This would include ALL applicants, whether Bachelor’s degrees, masters or higher degrees and whether US issued or not. Then, once the 65,000 applications have been selected, the remaining US-issued Master’s degree holders will be placed in the running for the separate 20,000 US-master’s cap.
The USCIS claims that this will increase the chances of selection for US-master’s degree holders by at least 16% over the current method.
Comments are due by January 2, 2019.
The pre-registration system will require at least the following information:
Employer Name, Address, and Employer Identification Number;
Name of the employer’s Attorney or agent and contact information for such attorney/agent;
Beneficiary information: Name, address, biographic information, nationality, passport and visa information, and highest degree including whether the beneficiary holds a US-issued Master’s or higher degree;
Employee salary and job information, with requirements (this is my supposition, given the requirement of the BAHA Executive Order); and
Such additional information as the USCIS deems useful or necessary in making the selection.
An employer filing an entry in this “lottery” must attest that the employer will file the H-1b for that employee if the application is selected through the pre-selection process.
The process is limited to one registration per beneficiary. The USCIS will NOT require a fee for the pre-registration application.
Obviously, the benefit is that the employer does not have to spend money on legal fees and filing fees only to have an application NOT selected for processing and the entire effort nullified. In this proposed system, the employer will have a chance to “throw the proverbial hat in the ring”, at little to no cost, and only if the application is pre-selected, then work on compiling a full-fledged H-1b application.
Some cautions I expect are in order:
1. Given how long the USCIS takes to currently input and select the 85,000 annual new H-1b cases for processing, it will also take the same amount of time to carefully input and then select the 65,000 “general” applications that will be processed, and following that, the additional 20,000 US-master’s cap cases. That means that the employers whose cases are selected for processing will have to get their “complete” applications assembled and filed in a relatively short window between the notification that their application has been selected for processing and the first week of April, when the USCIS typically accepts H-1b applications. This will put an increased strain on the employer’s HR and legal professionals.
2. What guarantee is there that the USCIS selection process will be fair and unbiased? Given that this administration has been anything but fair to immigration in general – even legal immigration – how are we to know that the USCIS is employing honest “lottery” processes, and not just selecting those jobs which command the highest salary?
3. Finally, in the absence of any oversight, how will the selection be allocated? Will smaller companies with lower job requirements (bachelor’s instead of master’s degrees) or smaller budgets (non-profits, for example), be declined?
All in all, the USCIS proposal may be a good one for US-issued master’s candidates. But what about the other stakeholders in the process? Don’t smaller companies and non-profits deserve to benefit from the H-1b visa candidate’s talents too? As always, the “devil is in the details” of the proposal’s implementation.
Copyright, Farhad Sethna, Attorney, 2018
Farhad Sethna has practiced law for over 25 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and used his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.