A major benefit to companies and workers alike, H-1B visas allow employers to search overseas for skilled talent. Likewise, well-educated and skilled workers can find access to the American job market via H-1B opportunities. These opportunities create benefits for the U.S. labor market and the country as a whole.
The United States Citizenship and Immigration Services (USCIS) oversees the H-1B application and selection process. In November 2018, the department posted an announcement on its website regarding potential changes. These alterations would significantly alter the way H-1B visa beneficiaries apply and are selected.
Each year, there are 65,000 standard H-1B visas available. This is the annual “cap” of visas that the U.S. provides. In addition to standard H-1Bs, an additional 20,000 “cap exemption” visas are made available to highly-skilled professionals with advanced degrees from U.S. institutions. These specialists are given preference within the H-1B system.
This article reviews the changes proposed by the USCIS, as well as the current structure of the H-1B application process for reference.
USCIS Announces Potential Changes
In November 2018, the USCIS posted an announcement regarding H-1B visas to its website. This is likely the result of the Trump administration’s desire to overhaul the immigration system. In April 2017, the president signed and released the “Buy American Hire American” executive order. Within the order, the president guided administration officials to seek ways to change the H-1B system to attempt to award the visas to the “most-skilled and highest-paid petition beneficiaries.”
New Selection Structure
Under the newly proposed structure, two major changes would take place. First, companies would not have to submit full applications for their potential hires. Second, the drawing order of the lottery system would switch. We explain these changes in more detail below.
Currently, any company wishing to sponsor a potential H-1B candidate has to jump through several hoops. Most importantly, employers must submit a full sponsorship petition for each candidate before selection takes place. Since the H-1B selection system has turned over to lottery over the last several years, this can mean a lot of work and overhead for companies without promise of workers.
Under the new system, companies would simply register any potential candidates online during the appropriate timeframe. If the lottery choses a candidate, the company or employer would then promptly complete the sponsorship petition. Without a doubt, this eases the burden on employers, especially in the highly competitive world of H-1B visas.
The second suggested change to the H-1B system involves how the USCIS selects candidates. First, it’s important to note that the selection process does not automatically turn into a lottery. A lottery system triggers when applications surpass the annual “cap” within five business days of availability. According to the American Immigration Council (AIC), this has happened during eight of the last ten fiscal years (FY 2008 – FY 2019). This is because of incredibly high demand for H-1B workers’ skill sets and specialties. Thus, applicants and employers should expect and prepare for the upcoming year to become a lottery system.
Under the currently used lottery system, the USCIS chooses “cap exemption” candidates (those with advanced degrees and highly specialized skills) first. Once the USCIS allocates the 20,000 “cap exemption” visas, any unchosen candidates in the category move to the larger applicant pool. Then, the USCIS conducts the general lottery, selecting 65,000 candidates and filling all available visas.
In the new system, this process reverses. The USCIS states that this could lead to a 16% increase in highly-educated workers receiving visas. This is because instead of selecting “cap exemption” candidates first, the standard lottery would occur with all such candidates present. Once the lottery allots the 65,000 standard visas, “cap exemption” candidates would have a second chance. All applicants who weren’t selected in the standard lottery would then receive consideration for the remaining 20,000 “cap exemption” H-1B visas.
This new system is in alignment with President Trump’s requests of his staff via his April 2017 executive order. The proposed changes closed for comment on January 2, 2019. It is unclear at this time if the USCIS intends to implement the changes for the upcoming fiscal year.
Work With An Experienced Immigration Attorney
While it is impossible to know if the USCIS intends to implement the proposed H-1B application and selection changes for FY 2019, companies and applications should prepare for anything. If you are planning to either sponsor or apply for an H-1B visa this year, we suggest that you begin preparations assuming that the system will remain the same. At the same time, it’s essential to be aware of the potential changes and expect these may in fact happen by April 2019.
The best way to prepare for 2019’s H-1B season? Work with a skilled immigration attorney. At Davis & Associates, we keep up on the news so you don’t have to worry. Working with an immigration attorney will ensure that your application will be processed the correct way, no matter what the system looks like. Contact us for a free initial consultation – we can discuss your H-1B needs, plans, and application. You’ll be ready to apply for or sponsor an H-1B visa in 2019!