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DHS Seeks Comment on Proposed Restructuring of H-1B Visa Program for Foreign Professionals

Posted Wednesday, December 26, 2018 6:25 am

The Department of Homeland Security (DHS) issued a notice of proposed rulemaking to restructure the filing procedures for H-1B visas, the temporary work visa category for foreign professionals.

Current Procedure

New H-1B visas are limited each year to 65,000 (“regular cap”) plus an additional 20,000 for individuals with U.S. graduate degrees (“advanced degree exemption”).  U.S. Citizenship and Immigration Services (“USCIS”) randomly selects 85,000 professionals whose petitions will be reviewed.  Last year, over 190,000 H-1B petitions were submitted within the first week of April when the filing window opened.

Under the procedure currently in place, to be considered in the lottery, employers must prepare a full petition, including supporting documentation and details of the job offer, and show that they have taken the required steps to protect the wages and working conditions of their American workforce.

Proposed Rule

The proposed rule seeks to (1) impose a preliminary electronic registration requirement for employers seeking to file an H-1B petition (prior to submission of a full petition); and (2) reverse the order of selection so that petitions for the H-1B regular cap would be selected before the advanced degree exemption.  Each of these proposed changes will be discussed in turn.

Proposed Registration Process

Under the proposed rule, employers will be required to electronically register each potential H-1B employee by providing USCIS with basic information about the person and the position.  The lottery is run from the electronic registrations and only those selected will be eligible to submit a full petition.

DHS will require petitioners to attest that the contents of each registration are true and accurate and that the petitioner intends to employ the beneficiary consistent with the registration.  According to the proposed rule, “If USCIS finds that petitioners are registering numerous beneficiaries but are not filing petitions for selected beneficiaries at a rate indicative of a pattern and practice of abuse of the registration system, USCIS would investigate those practices and could hold petitioners accountable for not complying with the attestations, consistent with its existing authority to prevent and deter fraud and abuse.”

Reversing the Order of Selection

In addition, DHS is proposing to change the order in which registrations would be selected.  Currently, when the H-1B regular cap and the advanced degree exemption are both reached within the first five days that petitions may be filed, the advanced degree exemption is selected prior to the H-1B regular cap.  The proposed rule would reverse this and count all registrations or petitions towards the H-1B cap first.  Once a sufficient number of registrations or petitions have been selected for the H-1B regular cap, USCIS would then select registrations or petitions towards the advanced degree exemption.  The intended purpose of this change is to increase the chances that beneficiaries with a master’s or higher degree would be selected under the H-1B regular cap and that H-1B visas would be awarded to the most-skilled and highest-paid beneficiaries.

Comments Requested

Public comments on the proposed rule are being accepted and must be received on or before January 2, 2019.  You may submit a comment online or by mail to:

Samantha Deshommes
Chief, Regulatory Coordination Division, Office of Policy and Strategy
U.S. Citizenship and Immigration Services
Department of Homeland Security
20 Massachusetts Avenue NW
Washington, DC 20529

To ensure proper handling, reference DHS Docket No. USCIS-2008-0014 on your correspondence.

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