H-1B Visa Updates Proposed by USCIS
December 20, 2018
Across the United States (U.S.), the H-1B visa program benefits thousands upon thousands of immigrants and employers alike. Recipients of H-1B visas work in a variety of fields, benefit the U.S. economy, and bring unique skillsets to the labor market. Because of its benefits and limited drawbacks, the H-1B visa program continues to be a wildly popular hiring option for U.S. employers seeking high quality applicants overseas.
In alignment with campaign promises, the Trump administration has consistently worked to overhaul and weaken the U.S. legal immigration system. In April 2017, shortly into his presidency, Trump released the “Buy American Hire American” executive order. One of the order’s direct aims was to “ensure that American labor is hired to do the job.” Within section 5 of the order, the president demanded H-1B program updates or changes to “help ensure that H-1B visas are awarded to the most-skilled and highest-paid petition beneficiaries.”
About the H-1B Program
Since its creation in 1990, the H-1B program has provided work opportunities for a specified group of highly-educated professionals. The visa is not permanent, thus is “nonimmigrant,” and lasts for a total of three years. After expiry, an H-1B beneficiary, along with their sponsoring company, can petition for an extension, providing an additional three years of work time in the U.S.
The USCIS makes a limited number of H-1B visas available every fiscal year (FY). They are available, as discussed above, to specially-trained professionals with a high level of education and/or training from “specialty occupations.” While any company representing a specific field can petition for a potential beneficiary, the most requests for H-1B workers come from STEM fields. STEM fields are: science, technology, engineering, and math. In fact, according to the American Immigration Council (AIC), STEM careers and companies represent nearly two-thirds of requests for H-1B visas.
H-1B Annual Caps
Each year, the USCIS instates an annual limit, or “cap,” on H-1B visa allotments. The current cap is 65,000, with an additional 20,000 visas available for those with advanced degrees from U.S. institutions. As U.S. companies attempt to gather talent both from within the U.S. and abroad, the H-1B program has become wildly popular, with demand vastly outstripping supply. In fact, in recent years this demand has triggered a lottery decision process.
The H-1B lottery system is not a required step in the process, but in recent years it has become the norm. When applications pass the annual cap within five business days of availability, the process becomes a lottery. The H-1B lottery has become commonplace in the last decade. According to the AIC, the lottery has been triggered eight times between FY 2008 and FY 2019.
The current lottery process first considers the 20,000 available visas for applicants with advanced degrees. Once the lottery allocates those visas, any remaining candidates then enter into the larger pool for consideration. The lottery then randomly selects all 65,000 standard H-1B applicants. Once selected, candidates begin the full vetting process before final approval and immigration.
Proposed Changes to H-1B Process
In late November, the Trump administration publicized several significant changes to the H-1B application and selection process. The changes remain open to public comment until January 2, 2019. The entirety of the announcement and details of proposed changes are available on the federal register. The public may submit comments on its webpage.
While the comment period does provide a month for public response, The San Francisco Chronicle noted it is shorter than usual. The may mean that the USCIS may implement the intended changes for FY 2020 H-1B applications. Though, the changes may be too great an undertaking in the months remaining until April 2019.
Below we detail the H-1B changes proposed by the USCIS.
The first changes proposed to the H-1B system apply to its application process in general. Under current procedure, employers must complete and file petitions for every potential H-1B candidate they hope to hire. Because companies complete this before selection, it requires them to invest a significant amount of time into the application process without any promise of return investment.
Via the new system, any employer wishing to hire an H-1B worker would have a much simpler process. Rather than a full and detailed sponsorship petition, employers need only register their H-1B candidates before selection. If the USCIS chooses a company’s H-1B beneficiary, likely via lottery, the company would then submit a full sponsorship proposal.
The Chronicle notes that this change may directly target certain staffing companies “notorious for ‘flooding’ the lottery with petitions that ‘may or may not be super legit.’” The new policy could limit such firms ability to sway lottery results, and according to The Chronicle, the intention was likely just that.
The lottery system itself faces major changes, as well. Via to the USCIS’ announcement, the administration intends to reverse the decision order of the lottery. According to the Trump administration, this should make the lottery about merit and skill and less about straight luck.
Currently, the lottery considers “cap exemption” applicants first. Those are the applicants who have advanced degrees from U.S. institutions. Within the current system, these candidates are eligible for an additional 20,000 visas. When the original 20,000 cap exemption visas are awarded, any remaining applicants are still eligible via the standard H-1B pool.
Under the new system, the choosing order would reverse. The standard lottery would occur first, and include all highly-educated professionals available for the cap exemption visas. If left unchosen, those candidates would then enter the lottery for the additional 20,000 cap visas.
According to the Chronicle, “changing the order would mean more highly skilled workers would compete for the same number of visas, reducing the likelihood that people without advanced degrees win in the general lottery.” In theory, this procedural change would heighten the number of highly qualified H-1B recipients.
This is purported by the USCIS, which estimates that the number of highly-educated workers receiving H-1B visas could rise by up to 16%. This move is in line with the Trump administration’s goals to change the H-1B process. According to the administration, it sets the standard for Trump’s aim for a “more meritorious selection” of H-1B recipients.
Contact an Expert Immigration Attorney
The proposed changes to the H-1B system, if approved, may cause confusion as the government adjusts to new procedures and processes. Any company or individual interested in the H-1B visa program should contact an expert immigration attorney. Only a lawyer certified by your state’s bar association can provide you with the proper guidance and counsel required.
The attorneys at Nanthaveth & Associates continually monitor government policy updates. If you have any questions about any immigration question, including H-1B visas, don’t hesitate to schedule a free initial consultation.