The Department of Homeland Security (DHS) published a Notice of Proposed Rule Making titled Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens. The new rule would establish a digital “pre-registration” system for H-1B petitions and change the order in which H-1B petitions are selected.
The goal is to bring the immigration process into the 21st century with a digital pre-registration system and award H-1B visas to recipients with advanced degrees. At a glance, the rule seems to be a positive change but could affect other qualified applicants. The DHS wants the new process implemented in time for the FY2020 cap season that begins April 1, 2019. As a result, employers that have already prepared well-evidenced petitions under the current system would incur significant costs.
A Brief Overview of the Selection Process
In 2004, Congress set a total limit of 85,000 H-1B visas available each year. There are 65,000 H-1B visas available to all applicants and 20,000 cap-exempt visas designated for U.S. advanced degree holders (master’s degree or higher). Currently, USCIS selects the first 20,000 submitted advanced degree applications. All of the remaining petitions then compete for a spot in the 65,000 H-1B visa cap, regardless of educational background.
Changes and Potential Problems
DHS’ proposed rule would switch the selection order. USCIS would fill the 65,000 cap-subject slots first and then allocate the remaining 20,000 cap-exempt visas to advanced degree holders.
The first problem with the proposed rule is the reduction to the total number of H-1B visas issued. If the first 65,000 visas are given to the U.S. advanced degree holders only, there may not be enough advanced degree petitioners left to fill the 20,000 cap-exempt category.
This scenario explains exactly why Congress wrote into law the cap exemption for foreign nationals who have “earned a master’s or higher degree from a United States institution of higher education (as defined in section 1001(a) of title 20), until the number of aliens who are exempted from such numerical limitation during such year exceeds 20,000” (8 U.S.C. 1184(g)(5)(C)).
It seems that the proposed new rule would radically reinterpret the word “until” by switching the order in which USCIS selects petitions. Whether DHS has the authority to change legislation through rulemaking is yet to be determined.
Congress recognized that U.S. employers need a diverse labor market made up of workers with a variety of educational backgrounds. The proposed rule could bypass Congress’ original intent while restricting how many H-1B visas are issued and who will have better chances of receiving an H-1B status.
Reversing the selection order could create serious hurdles for other qualified applicants (including masters and PhDs) who obtained their degree(s) outside of the U.S. Moreover, the change would undermine what U.S. employers seek in a competitive labor market. The rule would essentially cripple U.S. businesses’ ability to meet their need for highly qualified workers at all levels since eligible cap-exempt candidates would fill the cap-subject pool.
How it Works
The new system would require employers to pre-register at least two weeks prior to the opening date on April 1. Applicants would need to pre-register by submitting their name and contact information as well as the beneficiary’s name, contact information and education level.
Then, USCIS would select and invite 65,000 pre-registrants to submit their full petitions and approved Labor Condition Application (LCA).
USCIS believes the pre-registration system will bring the agency up to date in the digital world by moving visa processing online and reducing the number of paper petitions. USCIS contends that the new process will cut costs for employers by allowing employers to initially forego the entire H-1B visa process until their petition is selected.
The proposed rule stems from the “Buy American, Hire American” presidential executive order that directs agencies to find ways to award H-1B visas “to the most-skilled or highest-paid petition beneficiaries.” USCIS argues that changing the lottery order will increase the chances for U.S. advanced degree holders to be selected since they all would be included in the cap-subject lottery before competing for the cap-exempt H-1B visas.
Timing and Method
There is no good argument against increasing the number of foreign-national with an advanced degree joining the American workforce. However, perhaps there are better means to achieve this end. Changing the order in which H-1B visa petitions are selected will undoubtedly be to the detriment of other qualified applicants.
It is necessary to bring our immigration system up to date with current technology, and the proposed pre-registration system may be a step in the right direction. Online H-1B pre-registration could make the petition process more efficient by saving time, money and resources for both employers and the U.S. government.
However, if DHS jumps the gun to make the pre-registration process effective immediately serious issues and unaddressed problems would arise as a result.
For instance, if the process is made effective for FY2020, the final guidance would most likely be published within a matter of weeks before the April 1st opening date. Announcing the final rule on such short notice puts U.S. employers in a pickle by giving them very little time to gain a complete understanding of the new process.
USCIS may also use the new H-1B lottery process to avoid issuing all 85,000 visas. Also, there is a real risk that employers will flood the system with pre-registrations that are not later accompanied by full petitions. It may create a false demand for which DHS admittedly does not have a solution.
Best practice, especially for government, is a well thought out system that mitigates risks and causes the least amount of damage to all parties involved. Rushing to implement a system without any proper justification is short-sighted and will only result in more problems later on. Those problems will require even more time and money to solve. The best way to effectively and reasonably resolve H-1B issues is through legislative change.