Tag Archives: H-1B cap

Final H-1B Rule (Partially) Effective for 2019 Cap

After numerous public comments, USCIS posted the final H-1B registration rule requiring petitioners to register in a new system on behalf of cap-subject aliens. The rule also reverses the order in which H-1B petitions are selected for adjudication, potentially increasing the number of H-1B visa holders with U.S. master’s degrees. While the rule was published on January 31, 2019, the electronic registration requirement has been suspended until the FY 2021 cap season “to complete user testing and ensure the system and process are fully functional.”

Since President Donald Trump signed the “Buy American, Hire American” executive order in 2017, the Department of Homeland Security has made a series of changes to adjudication processes through policy memoranda. The executive order put a special emphasis on the H-1B program and directed the Secretary of Homeland Security to “suggest reforms to ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” USCIS Director Cissna stated:

“The registration system, once implemented, will lower overall costs for employers and increase government efficiency. We are also furthering President Trump’s goal of improving our immigration system by making a simple adjustment to the H-1B cap selection process. As a result, U.S. employers seeking to employ foreign workers with a U.S. master’s or higher degree will have a greater chance of selection in the H-1B lottery in years of excess demand for new H-1B visas.”

The new registration system would allow employers to wait until a registrant is selected for the cap before submitting the H-1B petition. Only basic information would be required during the registration process for the employer and beneficiary, including the employer’s name, EIN, address, authorized representative information, basic biographic information about the beneficiary, and notification of the employer’s attorney or accredited representative.

Employers: Preparing for April 1, 2019

Since the registration system will be delayed, the main change to the H-1B filing process for cap season 2019 is the order by which USCIS will select H-1B petitions. The previous process was to select the advanced degree exemption beneficiaries first (assuming the H-1B cap and advanced degree exemption quotas are reached within the first five days of filing). The new rule reverses the selection order, counting all applicants towards the estimated number needed to reach the regular H-1B cap first. After those applicants are selected, then USCIS will select applicants eligible for the master’s degree or higher exemption. USCIS estimates that this change will cause a 16% increase in the number of selected beneficiaries with a master’s degree or higher from a U.S. institution of higher education. Employers hiring individuals with U.S. master’s degrees may have a higher likelihood of getting beneficiaries selected for the cap or advanced degree exemption.

A recent report by the National Foundation for American Policy (a non-partisan group) found that denials and Requests for Evidence (RFEs) increased soon after the “Buy American, Hire American” executive order was signed. From the third to fourth quarter of FY2017, “the proportion of H-1B petitions denied for foreign-born professionals increased by 41%… rising from a denial rate of 15.9% in the 3rd quarter to 22.4% in the 4th quarter.” RFEs also jumped from 63,599 in the first three quarters combined to 63,184 in the fourth quarter, causing the rate of RFEs to completed cases to jump from 23% in the third quarter to 69% in the fourth quarter.

H-1B RFEs are often a mechanism for DHS’s increased scrutiny on wages and certain level one specialty occupations. Employers need to initiate cases early so that these issues can be addressed before the petition is filed. Employers and potential H-1B recipients should already be gathering documentations in preparation for the April 1, 2019 deadline. If you wait until March, it may be too late to obtain the necessary labor condition application and gather all required documents.

Below are some tips to help your H-1B get approved:

  • Consult with an immigration attorney to ensure the position meets H-1B regulations for a specialty occupation.
  • Develop a detailed job description that clearly lists job duties and make sure the position matches the required salary.
  • Explain how the position is specialized and requires a minimum of a bachelor’s degree.
  • H-1B applicants must have all documentation translated into English with a valid translation certificate attached.
  • If the degree is from a foreign institution, plan to have a credentials evaluation completed.
  • Double check the required filing fees and decide whether to utilize premium processing.

Employers also need to ensure strict compliance to the H-1B regulations and file timely amendments or extensions for employees who could shift job duties or be near the end of a project.