United States: The Game Of H-1Bs: New Immigration Regulations Take Effect April 1

Last Updated: March 18 2019
Article by Alan C. DeVries

This spring, fans of HBO’s “Game of Thrones” series will finally see who will win the Iron Throne in the last season of the popular show. At the same time, many U.S. employers and foreign national professionals will vie for another coveted prize – H-1B visas from the annual lottery. But going forward, major plot twists will change the H-1B lottery process.

On Jan. 31, 2019, U.S. Citizenship and Immigration Services (USCIS) published new regulations that implement two significant changes to the current H-1B process. First, the new regulations establish an electronic preregistration process for the annual H-1B lottery. Second, USCIS has changed the lottery selection order in an effort to benefit those with U.S. graduate degrees.

Since these proposals were announced in the fall of 2018, there has been uncertainty about whether the new regulations would affect the April 2019 H-1B cap lottery. We now know the selection order will change this year, but the new preregistration system will be postponed until 2020.

What does this mean for U.S. employers seeking to sponsor H-1B visa candidates in 2019? Whereas chaos still reigns over the Wall in Westeros … and, well, in the U.S., with the government shutting down over our version of the Wall … the new regulations provide some needed clarity as preparations begin in earnest for the April 2019 cap season.

How does the current H-1B lottery process work? In the current system, employers sponsor current or prospective employees for H-1B visas to work in “specialty occupation” positions that require a bachelor’s degree or higher in a specific field. There is a limit of 65,000 H-1Bs each year, plus 20,000 more for those with graduate degrees from U.S. institutions. Each year, during the first week of April and until the numerical limit is reached, USCIS begins accepting new H-1B petitions for employment starting Oct. 1. If too many H-1B petitions are filed during the first week of April – which has occurred in each of the past six years – then USCIS conducts a lottery to select the winners. Last year, more than 190,000 petitions were filed and less than 45 percent were selected.

What is new in 2019? Despite initial uncertainty, the filing process will remain the same for employers in 2019. Employers will still need to secure certified labor condition applications from the U.S. Department of Labor and then prepare and file complete I-129 petitions with USCIS between April 1 and April 5. After that filing, however, USCIS will change how it conducts the 2019 lottery. USCIS conducts two separate lotteries: a general lottery for 65,000 H-1Bs and an exclusive lottery for 20,000 H-1Bs with graduate degrees from U.S. institutions. USCIS has historically conducted the U.S. graduate degree lottery first, but the new regulations reverse the order. The switch to conduct the general lottery for 65,000 H-1Bs first is intended to benefit those with U.S. graduate degrees by increasing the overall selection rate. Previously, the percentage of U.S. graduate degree holders was diluted among the general lottery pool because the winners of the graduate lottery were removed. USCIS estimates reversing the order will increase the selection rate of H-1Bs with U.S. graduate degrees by about 16 percent. Conversely, this will hurt the chances of employers that sponsor applicants without U.S. graduate degrees.

How will the electronic preregistration process work in 2020? The preregistration process will be postponed until the April 2020 cap lottery. Next year, instead of filing complete H-1B petitions for each sponsored employee, employers will electronically preregister each desired H‑1B employee. Preregistration, which will be free, will require only basic information about the employer and each sponsored employee. USCIS will conduct the lottery electronically, and the winners will then have at least 90 days to prepare and file complete H-1B petitions. Employers will be limited to one registration per employee per year. The registration window will remain open for at least 14 days prior to April 1.

How will preregistration help my company? Preregistration will save employers the legal fees associated with preparing H-1B petitions that are not selected in the lottery. Employers will have to pay for preparation and filing of only those H-1B cases selected in the lottery. In theory, preregistration will also conserve government resources that USCIS can redirect to other matters, including, it is hoped, speeding up processing.

Ideally, the new regulations will result in more H-1Bs being approved. Historically, USCIS has not approved and issued the full allotment of 85,000 H-1Bs each year. When H-1B petitions were denied in the past, USCIS did not necessarily accept additional cases in their place; the agency just approved fewer H-1Bs. Under the new regulations, USCIS intends to hold extra H-1B registrations in reserve for cases that are ultimately denied, withdrawn or abandoned.

Sounds great. What could go wrong? Given the recent heightened scrutiny and increased denials of H-1Bs as well as the Trump administration’s express disfavoring of the H-1B program, it is fair to be skeptical about these changes. Free registration, while good in theory, may cause H-1B registrations to soar. Employers will be able to preregister unlimited H-1B registrations with minimal cost. There will be no disincentive to preregister cases with doubtful likelihood of success. The system may even be vulnerable to malfunctions, as we saw on Jan. 1, 2019, when more than 90,000 applications were electronically filed for 33,000 H-2B visa slots. The Department of Labor’s online system was overwhelmed and then shuttered for six days.

How should employers proceed? Prepare now: H-1B season is coming!

For 2019, U.S. employers will not have to make any changes in the process they have used in the past for H-1B cap filings. Employers should consider filing all eligible cases in 2019, however, as an increase in H-1B cap filings due to preregistration could reduce the overall odds of success in 2020. Employers may also have more confidence sponsoring candidates with U.S. graduate degrees due to the expected increase in the odds of success.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions