The H-1B visa program creates an opportunity for skilled workers in specialized fields. Under the program, talented and well-educated foreign nationals can immigrate to the United States (U.S.) temporarily to work for American companies. The program also benefits the U.S., boosting the economy and allowing companies to recruit talent overseas that is hard to find at home. Each year, the H-1B visa program continues to attract more applicants than the program allows.
The Trump administration has attempted to overhaul the U.S. immigration system in many ways. In April 2017, the president issued the “Buy American Hire American” executive order. This order directly targeted the H-1B system. In Section 5, the president requested that administration leaders suggest program reforms that would “help ensure that H-1B visas are awarded to the most-skilled and highest-paid petition beneficiaries.”
General Information About H-1B Visas
Created in 1990, H-1B visas are temporary, or “nonimmigrant,” visas made available to foreign nationals with training and expertise in “specialty occupations.” Often, these occupations fall within the fields of technology, mathematics, or engineering. In fact, the American Immigration Council (AIC) reports that “nearly two-thirds of requests for H-1B workers are for STEM occupations.” STEM occupations are any fields in science, technology, engineering, and math.
Once awarded, H-1B visas are valid for a total of three years. If necessary, H-1B visa holders and their companies can petition for an extension to allow the classification to last for an additional three years (six years total).
Each year, there is a limit, or “cap,” on H-1B visa allocation. The annual cap has varied throughout the years. Currently, the annual H-1B visa cap is 65,000. The USCIS makes an additional 20,000 “cap exemption” visas available for foreign specialists with advanced degrees (i.e., master’s or above) from U.S. institutions. Recently, the demand for H-1B visas has far outstretched availability. This often triggers a lottery situation, where a computer chooses applicants at random.
The H-1B lottery system triggers if applications surpass the annual cap within five business days of availability. According to the American Immigration Council (AIC), this has occurred eight times between Fiscal Year (FY) 2008 and FY 2019. When the lottery occurs, USCIS first selects the 20,000 “cap exemption” workers with advanced degrees. Any person eligible for the cap exemption who is not chosen is then entered into the full lottery for consideration for the remaining 65,000 visas.
USCIS Proposes Changes To H-1B System
On November 30, the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) announced several proposed changes to the H-1B system. These include both changes to the application and selection process. You can read the proposed reforms in their entirety on the federal register. The proposal is open for public comments until January 2, 2019.
According to The San Francisco Chronicle, the time allotted for comments is about half the time that’s usually provided. This likely means that the USCIS intends to implement these updates for the FY 2020 application process in April 2019.
Below we outline the USCIS proposed changes to the H-1B process.
First, USCIS proposes changes to the application process in general. Currently, employers must complete and submit full applications for each H-1B candidate they wish to hire. If the lottery selects a candidate, the visa selection process would then continue as the potential beneficiary is vetted by U.S. visa procedures.
The new system would ease the burden on employers and companies. Under the new proposal, employers would simply register any candidates that would be applying via the online system. If the USCIS chooses a candidate via the lottery, the employer would then prepare a full application and petition the USCIS in the name of their candidate.
This change may be a result of tech staffing companies, who the Chronicle writes are “notorious for ‘flooding’ the lottery with petitions that ‘may or may not be super legit.’” In theory, such changes could thwart such outsourcing companies from continuing this behavior.
In addition to changes to the application procedures, the USCIS intends to change the structure of the lottery itself. In short, the intention of the Trump administration is to make the process less about luck and more about merit or education.
Under the current process, the lottery first chooses cap exemption applicants with advanced degrees from U.S. institutions. After the 20,000 cap exemption visas are awarded, any additional cap exemption candidates become eligible for the remaining 65,000 visas.
But, via the newly proposed system, the order would flip. Instead, highly-educated cap exemption professionals would be included in the general lottery. Once the USCIS chooses beneficiaries for the existing 65,000 standard visas, any remaining cap exemption applicants would pass to the next lottery, where 20,000 specialized visas are available.
According to the Chronicle, “changing the order would mean more highly skilled workers would compete for the same number of visas, reducing the likelihood that people without advanced degrees win in the general lottery.” This would, in theory, lead to an increase in cap exemption workers receiving H-1B visas.
In fact, the USCIS estimates that the proposed lottery changes could increase the number of highly-educated workers by 16%, or 5,340 workers. Further, the USCIS commented that this new system upholds a “more meritorious selection of beneficiaries.”
Questions About The Possible New H-1B Procedures?
Changes in government procedures or processes can cause confusion and frustration. The expert attorneys at Davis & Associates continually monitor government policies and procedures. Whether you have a question about H-1B visas, the new USCIS proposal, or have another immigration concern, we’re here to help.
In conclusion, our attorneys suggest that employers and potential H-1B applicants continue as usual for the time being. The best action you can take? Talk to an experienced immigration lawyer. Sit down with us for a free initial consultation – we’ll work with you and ensure you feel at home. We’ll prepare you for the 2020 H-1B season.
 Russell, M. (2018, November 30). H-1B visa shift may favor tech companies. The San Francisco Chronicle. Retrieved from https://www.sfchronicle.com