USCIS announced that it has successfully completed pilot testing for the new digital pre-registration process that will be used for the next H-1B visa lottery. The digital pre-registration is part of a broader Notice of Proposed Rule Making published by the Department of Homeland Security titled Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens.
The rule not only establishes a digital pre-registration system for H-1B petitions, but it also changes the order in which H-1B petitions are selected.
How it Works
The new system requires “employers seeking H-1B workers subject to the cap, or their authorized representatives, to complete a registration process that requires only basic information about their company and each requested worker.” The initial registration period will be open from March 1 through March 20, 2020. The H-1B random selection process, if needed, will then be conducted using only the electronic registrations.
USCIS will select and invite 65,000 pre-registrants to submit their full petitions and approved Labor Condition Application (LCA). Only those whose registrations were chosen will be eligible to file H-1B cap-subject petitions.
The goal is to bring the immigration process into the 21st century by streamlining the process and awarding H-1B visas to individuals with advanced degrees. At a glance, the change seems to be positive but is being implemented at the expense of other qualified applicants. The new process will go into effect in time for the FY2021 cap season that begins April 1, 2020. As a result, employers that have already prepared well-evidenced petitions in accordance with the current system could incur substantial costs.
USCIS believes the pre-registration system will bring the agency up-to-date in the digital world by moving more of the visa processes 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 application is selected.
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 advanced degree holders (Master’s degree or higher). Until last year, USCIS selected the first 20,000 advanced degree petitions submitted. All of the remaining petitions then competed for the other 65,000 H-1B visa slots, regardless of educational background.
Changes and the Potential Problems
The DHS’ rule switches the selection order. USCIS now fills the 65,000 cap-subject slots first and then allocates the remaining 20,000 cap-exempt visas to advanced degree holders.
The main problem with reversing the selection order is the potential for a cut to the total number of approved H-1B applications. If the priority for the first 65,000 visas is given to advanced degree holders, there may not be enough petitioners who qualify for the additional 20,000 advanced degree cap-exempt category.
This scenario is 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 USC 1184(g)(5)(C)).
It would seem that the DHS has basically reinterpreted the word “until” by switching the order in which USCIS selects petitions. Whether or not DHS has the authority to change legislation through rulemaking is yet to be determined.
Congress recognized that US employers need a diverse labor market made up of workers with a variety of educational backgrounds. The new selection order bypasses Congress’ original intent while restricting how many H-1B visas are issued and who will have better chances at receiving H-1B status.
Reversing the selection order introduces serious impediments for other qualified applicants (including those with master’s and doctoral degrees) who obtained their degree(s) outside of the US. Moreover, the change undermines what US employers seek in a competitive labor market. The selection order switch may essentially cripple US businesses’ ability to freely hire highly qualified workers at all levels. Under the new arrangement, eligible cap-exempt candidates would fill the cap-subject pool, taking a spot of otherwise qualified candidates with a bachelor’s degree.
The reordered selection process 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 would all 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 nationals with U.S. advanced-degree holders who can stay and work in America. But 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 absolutely necessary to bring our immigration system up-to-date with current technology, and the 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 US government. However, there is a genuine risk that employers will flood the system with pre-registrations that are not later accompanied by thorough petitions resulting in a false demand. Furthermore, there is a possibility of USCIS using the new H-1B lottery process to avoid issuing all 85,000 visas.