USCIS Confirms H-1B Application Changes for 2019
The H-1B program has boosted job opportunity and bolstered the U.S. economy since its creation in 1990. Each year, companies in “specialty occupations” can sponsor foreign professionals to fill critical vacancies. Many companies take advantage of the H-1B program, though certain industries are prevalent. For example, companies in “STEM” fields – science, technology, engineering, and math – sponsor two-thirds of applicants. Thus, the H-1B program is a crucial piece of the U.S. economy, supplying thousands of workers each year who provide skillsets difficult to find on American soil.
Each year, the U.S. makes 65,000 standard H-1B visas available to applicants from across the globe. You may sometimes hear this number referred to as the H-1B “cap.” Further, the USCIS reserves an additional 20,000 visas for “cap exemption” applicants. These applicants are those foreign professionals with advanced degrees (Master’s or higher) from U.S. universities and institutions. These candidates are valued in the H-1B system due to their specialized training and skills.
The H-1B application season begins on April 1 of each fiscal year (FY). When the annual H-1B cap is reached or surpassed within five business days of availability, the system becomes a computerized lottery. This has occurred so often within recent years that many people apply assuming the process will be a lottery. In fact, within the last 12 years, H-1B candidates have been selected via lottery eight times.
Executive Order Directs H-1B Reforms
In April 2017, President Trump issued the “Buy American Hire American” executive order. Within that order, the president directed his officials work to ensure that the H-1B system favors the “most skilled and highest paid beneficiaries.” Since then, one can assume that Trump administration staff at both the Department of Homeland Security (DHS) and the United States Citizenship and Immigration Services (USCIS) have worked to design H-1B reforms that would satisfy the president’s request.
November 2018 Announcement
In November 2018, the USCIS announced potential changes to the H-1B program. As we discuss above, these changes are the direct result of the “Buy American Hire American” executive order. Ultimately, the reforms’ aims were to make the process “more meritorious” rather than simply luck. According to the USCIS, the new H-1B application process could cause up to a 16% rise in highly-educated beneficiaries. After the announcement, the Trump administration posted the proposed changes to the Federal Register and the public could comment for roughly one month. The allotted timeline, shorter than usual, caused speculation that the administration wanted to implement changes for the upcoming April 2019 application season.
We discussed the proposed changes in greater detail in December 2018. You can read our original article here.
Proposed Changes to H-1B System Made Official
On January 30, the USCIS announced that DHS had posted its “final rule” that amends regulations for H-1B procedures moving forward. You can read all changes on the Federal Register. The USCIS Director Cissna stated that the H-1B changes are “simple and smart,…helping the H-1B visa program work better.” Two major institutional adjustments will happen to the H-1B program, which we discuss below.
Cap Exemption Applicants
Even more than before, the H-1B system favors those applicants who possess advanced degrees from a U.S. institution. Previously, the lottery selected cap exemption candidates first (20,000 available visas), then selected general lottery winners (65,000 visas). Any cap exemption applicants not selected in the first lottery receive consideration in the second lottery.
Now, the USCIS will consider all applicants first and conduct the standard lottery before the cap exemption lottery. This means that the standard lottery will include all cap exemption applicants (essentially 20,000 more than previous years). After the standard visa lottery, the cap exemption candidates who did not receive a visa will advance to the specialized “cap exemption” lottery. In theory, this should increase the amount of H-1B beneficiaries who have advanced degrees. The Trump administration hopes this will make the process less about luck and more about merit and individual education, training, and skill. Again, considering the data, the USCIS estimates this will add around 5,340 cap exemption workers (16%).
This procedural change is effective immediately and will begin for the FY 2020 application season on April 1, 2019.
Employer Registration System
The second major change, involving an electronic registration system, will not happen during the FY 2020 application season. Originally, this was not the intent, but public opinion on the Federal Register changed the administration’s original implementation. Instead, the USCIS will conduct “user testing and ensure the system and process are fully functional.” This makes sense, considering the massive effort that would likely be required to create a functional application system in a few short months. Without user testing, the system could cause confusion or errors that would result in delays, denials, and heartbreak. Below, we discuss the changes that will happen once the government fully vets system and it is ready for use.
In order to ease the burden on employers, the H-1B system will no longer require companies to send full petitions for every applicant. At the moment, employers complete hard copies, with applications arriving during the application window via mail. In the future, an electronic system will allow company sponsors to simply register any H-1B applicants. Ideally, this limits burden because the lottery system means that many applicants are not selected. When companies have to complete full sponsorship applications ahead of time, any candidate that is not selected equals wasted time and effort.
The new process will allow both companies and candidates to register online for the appropriate application season. If an applicant is selected via lottery, both parties would then complete full applications to continue the application process.
Good News that New System Will Wait
Considering the complicated nature of this undertaking, it is good news that the USCIS will not implement this change for FY 2020. This is ideal and will ensure the system is fully functional before execution. The USCIS states that it will post an announcement when the system is ready and complete outreach to ensure applicants and petitioners understand what to do.
Challenges May Occur
According to the Wall Street Journal, outsourcing companies targeted by these changes may challenge the new rules in U.S. courts. If this occurs and a court issues an injunction, the system may fall into chaos. Nanthaveth & Associates remains updated on current H-1B news and procedures and will post updates if and when they become available.
Questions? Contact an Austin Immigration Attorney
The new H-1B application changes can be confusing, especially when announced so close to the April 1, 2019 application date. For anyone considering either applying for or sponsoring an H-1B visa, the best ally throughout the process is a skilled and knowledgeable immigration lawyer. Avoid heartbreak, delays, and potential loss by only working with attorneys certified by your state’s bar association. Some people, like notarios or “visa consultants,” may offer help or guidance but are not legally qualified to provide legal counsel.
Nanthaveth & Associates is a trusted immigration law firm serving clients throughout Austin, Texas. Our experienced and compassionate team follows immigration news and government reform to ensure that our services are accurate and updated. Schedule a free consultation to discuss your FY 2020 H-1B application with one of our skilled attorneys. We’re ready to help make your H-1B application process as smooth and simple as possible – contact us today!