AILA Quicktake #254: DHS Announces Proposed Rulemaking for the H-1B Visa Program

Diane Rish, AILA's Associate Director of Government Relations, discusses the proposed H-1B visa program regulations.

Video Transcript

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On Friday, November 30th, the Department of Homeland Security announced a notice
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of proposed rulemaking that seeks to make significant changes to the H-1B cap
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petitions,commonly known as the H-1B visa lottery. First, under the proposed
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regulation petitioners seeking to file H-1B cap subject petitions would be
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required to register electronically with USCIS during a designated registration period.
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USCIS would then conduct the annual H-1B
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lottery from the pool of timely filed electronic registrants. The rule proposes
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that petitioners whose petitions are selected will be notified that they are
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eligible to file an H-1B petition within a designated filing period. The duration
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of the filing period would be at least 60 days. The electronic registration
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period would begin at least two weeks before the first date the H-1B filing
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window opens each fiscal year, which is commonly April 1st, and it would remain
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open for at least two weeks. The registration process would require
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information from both the employer and the beneficiary including but not
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limited to: the employers name, identification number, and address; the
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employers authorized representatives name, job title, and contact information;
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as well as the H-1B candidate's name, date of birth, country of birth, country of
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citizenship, gender, passport number, as well as whether the candidate has
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obtained a masters or higher degree from a U.S. institution. Employers would
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be also required to make an attestation in the system indicating their intent to
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file an H-1B petition for the beneficiary in the position for which
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the registration is filed. Petitioners would be limited to one registration per
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individual for the same fiscal year. USCIS is not proposing to charge a fee for the
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electronic registration at this time. The second major change proposed is to
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reverse the order by which the agency selects H-1B petitions
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under the H-1B cap and the advanced degree exemption. Currently in years when
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the H-1B cap and the advanced degree exemption are both reached
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within the first five days in which the H-1B cap petitions may be filed the
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advanced degree exemption beneficiaries are selected before the H-1B cap
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beneficiaries. The proposed rule would reverse the selection order and count
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all applicants towards the number projected as needed to reach the H-1B
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cap first once the sufficient number of applicants have been selected for the
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H-1B cap, USCIS would then select applicants towards the advanced degree
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exemption. USCIS projects that this change in the process would result in a
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16 percent increase in the number of selected beneficiaries with a master's
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degree or higher from a U.S. institution of higher education.
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USCIS has indicated it would like to finalize and implement the regulation and the electronic
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registration system in time for the opening of the upcoming fiscal year 2020
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H-1B cap filing season on April 1st 2019. However the likelihood that USCIS will
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finalize both by April 1st is slim given the tight time frame by which the agency
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must complete the regulatory process. The 30-day notice and comment period starts
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today, December 3rd, and will remain open until January 2nd 2019. USCIS must then
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review the comments, and any final version of the regulation must address
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concerns raised by the public. Once the rule is finalized the government would
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identify a date for the rule to go into effect. In the notice of proposed
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rulemaking USCIS acknowledges that it might not be possible to implement the
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electronic registration process in time for the fiscal year 2020 H-1B cap filing
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season particularly if additional user testing and vetting of the new system is
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required. Thus, if the rule is finalized as proposed but there is insufficient
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time to implement the registry system in time for the upcoming cap
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season USCIS would accept complete H-1B petitions with supporting documents as
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it is historically done in the past. AILA members therefore should advise
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their clients regarding the uncertainty of the timing in which the agency could
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finalize and implement the proposed regulation and plan to prepare H-1B cap
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subject petitions for fiscal year 2020 as they have in the past.
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AILA members can find a copy of the proposed regulation on the AILA website.
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AILA is preparing a summary of the proposed regulation this week that will
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help members to explain to their clients how the proposed changes would impact
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the H-1B cap process, the timeline involved, and how AILA members and the
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public can engage during the comment period. AILA will be developing and
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disseminating a comment template that will allow members and their clients to
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easily customize and submit a comment on the proposed regulation. Each member's
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views on the proposed changes are invaluable, and we encourage your
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participation. Keep an eye out for AILA's template comment on the proposed H-1B
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regulation in the coming days on the AILA website.

Cite as AILA Doc. No. 18120339.