USCIS: Proposed H-1B Program Changes Will Happen in 2019
Created in 1990, the H-1B program is a very popular immigration option for thousands of professionals throughout the world. Recently, the Trump administration has altered the structure of the H-1B application process, aiming to make selection “more meritorious.” Because of its popularity, any changes to the H-1B system affect thousands of people, including both employers and foreign workers. In this article, we review both the upcoming modifications to the H-1B program, the rationale for such changes, as well as some basic information about the H-1B system.
Most importantly, if you are seeking to sponsor or apply for an H-1B visa this year, the best resource is an experienced immigration attorney. Davis & Associates serves clients across Texas & Florida – contact us today to schedule a free initial consultation.
About the H-1B Program
H-1B visas are available to skilled international workers within “specialty occupations.” The visas boost the economy by allowing employers to search for necessary skillsets amongst foreign professionals. Often, H-1B applicants fill critical roles that otherwise would remain empty. While many companies across myriad fields utilize H-1B visas for hiring, the most prevalent industry is STEM – science, technology, engineering, and math. According to the American Immigration Council (AIC), companies from STEM fields sponsor roughly two-thirds of applicants.
The U.S. government limits the amount of H-1B visas that are available each year. We call this the annual “cap.” Currently, the annual limit on H-1B visas is 65,000. An additional 20,000 visas are provided to “cap exemption” candidates. These applicants possess advanced degrees (i.e., Master’s or higher) from a U.S. institution.
Every April, the H-1B application season commences. On April 1, 2019, the fiscal year (FY) 2020 application season will begin. While the system is technically “first-come, first-served,” the rules change if applications exceed the annual cap within five business days of availability. When this happens, a computerized lottery system choses all H-1B applicants. This happens so often that most experts assume that the H-1B lottery will activate every year. For example, since FY 2008, the lottery has triggered eight times.
“Buy American Hire American”
In April 2017, President Trump issued the “Buy American Hire American” executive order (EO). Within the order, Trump guided his associates to “promote the proper functioning of the H-1B program.” Further, the EO requests “reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” It is safe to assume that the newly announced updates to the H-1B program are a direct result of Trump’s April 2017 order.
Original Announcement in November 2018
On November 30, 2018, the USCIS unveiled new proposed updates to the procedural structure of the H-1B application process. These changes were posted to the Federal Register, where the public was allowed to submit comments for roughly one month. This timeframe was shorter than usual, which led to speculation that the proposed changes might take effect in 2019.
We discussed the Trump administration’s proposed H-1B application changes in a previous article.
What to Expect for the FY 2020 Application Season
The USCIS posted an H-1B update to its website on January 30, 2019. This announced that the changes proposed in November 2018 would be implemented, creating crucial changes to the H-1B application process. The formal update can be found on the Federal Register. According to USCIS Director Cissna, the changes will “[help] the H-1B visa program work better.” Two major adjustments will happen, but only one will occur for FY 2020. We discuss both changes below, and the timeline you can expect.
New Selection Procedure
According to the old lottery procedure, the USCIS selected cap exemption candidates first, followed by the standard visa lottery. Any H-1B cap exemption applicants remaining after the first lottery received consideration during the standard lottery.
Now, the lottery order will flip. First, the USCIS will conduct the larger lottery, considering all applicants for the 65,000 standard H-1B visas. This means that 20,000 additional applicants will be present in this lottery compared to previous years. After choosing all 65,000 standard visa recipients, USCIS will then hold the “cap exemption” lottery. Any “cap exemption” candidates who were not chosen during the standard lottery will be considered for the remaining 20,000 specialized H-1B visas.
This new procedure, according to the USCIS, will result in a 16% increase in highly-educated, highly-specialized beneficiaries. This achieves the Trump administration’s goals of an H-1B program that favors workers with advanced degrees.
New Registration System
The other major change proposed in November 2018 involved an electronic registration system. According to the USCIS, due to public demand, the agency will not implement this update during the FY 2020 application season. Instead, the government will vet and test the online system to ensure it is fully operational. Considering the complicated nature of such an electronic system, this decision is ideal, avoiding serious consequences should the system fail to work in April 2019.
Under the current system, which the government will still use this year, companies wishing to sponsor applicants must complete and submit full applications. This must occur for every candidate and employers submit hard-copy applications by mail. Understandably, the system should receive updates to make the application process easier for all involved.
Once tested and approved, a new electronic application system will only require employers to register applicants during the application window. This will save companies a considerable amount of time – since H-1B visas are capped and in high demand, many applicants are not chosen during a particular season. When sponsors must complete full applications and applicants do not receive visas, this represents wasted time and effort.
When the USCIS implements the new system, employers and applicants will only complete full visa petitions if selected during the lottery. This will limit the amount of time required for employers, making the H-1B selection process more accessible for all.
The Wall Street Journal (WSJ) reports that some organizations, including outsourcing companies targeted by the H-1B reforms, may challenge the new procedures in U.S. courts. Should this happen, a judge may order an injunction to stop implementation in April 2019. A WSJ source stated that if an injunction occurs, it could cause “chaos.” Davis & Associates will continue to monitor the situation for updates, and will post them as they are available.
Contact an Experienced Houston Immigration Lawyer
When changes occur to a popular immigration system, it can be frustrating, disheartening, or confusing. Luckily, immigration attorneys study the law and follow government reforms and news to make the process easier. If you are considering sponsoring an H-1B candidate, or applying for an H-1B visa, contact an immigration attorney as soon as possible. The FY 2020 application season may be tumultuous, considering the Trump administration’s updates. A knowledgeable immigration attorney will be able to provide critical guidance and advice during the entire process. Remember, avoid setbacks by only working with lawyers registered with your state’s bar association. Notarios or “visa consultants” may offer guidance or application support, but only a trained attorney can provide adequate legal counsel.
Davis & Associates serves the Houston community every day. Our expert immigration attorneys are ready to help with the upcoming H-1B application season. Contact us today to schedule a free initial consultation. You’ll sit down with one of our lawyers, discuss your H-1B visa application or sponsorship, and leave with a peace of mind!