On January 31, 2019, United States Citizenship and Immigration Service (USCIS) published its final rule on registration requirements for Petitioners seeking to file H-1B visas. The H-1B visa is traditionally the most sought-after nonimmigrant visa allowing U.S. employers to temporarily employ foreign workers in specialty occupations. Specialty occupation generally requires the application of specialized knowledge and a bachelor’s degree or equivalent.
There are 85,000 visas (20,000 reserved for beneficiary’s with master’s degrees or higher) available each fiscal year. Just last year, approximately 190,000 applicants applied for the 85,000 visas. To apply for the visa, employers generally file their petitions no later or earlier than April 1 as regulations allow applications to be accepted no earlier than 180 days from the beginning of the fiscal year beginning on October 1. In the past, USCIS would designate a day to conduct a random lottery of all the applications and select 85,000 to proceed with adjudication and reject the rest. This practice caused uncertainty and frustration with employers and it sometimes took months to know if applicants have been selected for the H-1B lottery. Being selected for the lottery does not guarantee approval of the visa. After selection, the applications are processed for full adjudication on the merits of the application.
In October 2018, USCIS first announced its plan to implement a pre-registration system for H-1B cap selection. After undergoing public commentary, the new rules announced on January 31 will allow applicants to first register with USCIS electronically (prior to April 1). The lottery will be held prior to any applications being submitted. If selected, applicants would then be invited to submit their applications and supporting evidence. The goal is to allow applicants to know if they have been selected prior to preparing the application. The pre-registration system is set to commence in 2020.
The final rule also makes changes to how the applicants are selected in the lottery. Under the H-1B program, there are usually two types of applicants: bachelor’s degree holders and advanced degree (master’s) holders. 65,000 visas are slated for regular applicants and 20,000 visas reserved for advanced degree holders. In previous years, advanced degree applicants would first go through the lottery of the 20,000 advanced degree pool and if they are not selected, their applications would be entered in the general 65,000 visa lottery. Under the new rule, the general lottery would run first with all applicants and then the advanced degree applicants would be entered to the 20,000 pool if they failed the first lottery. The reasoning behind this subtle shift in the selection process is to allow more advanced degree applicants to obtain a visa for the H-1B. The new rules clearly will give an advantage to beneficiaries with advanced degrees.
At Wilner & O’Reilly, we understand the complexities of the immigration laws. Immigration laws and procedures are constantly changing. Companies of all sizes seeking to hire foreign workers need to stay updated on these changes. We are experienced attorneys that can help. If you have any questions regarding H-1Bs or any other immigration matters, please do not hesitate to contact us.
ABOUT THE AUTHOR(S)
Chien-Yu (Michael) Wang – Managing Attorney – Sacramento
Chien-Yu (Michael) Wang is the Managing Attorney at Wilner & O’Reilly’s Sacramento office. He handles both family and business based immigration matters along with removal defense. Mr. Wang is admitted to the State Bar of California and the U.S. District Court for the Central and Eastern Districts of California. He is a member of the Los Angeles Country Bar Association, the Southern California Chinese Lawyers Association, the Sacramento County Bar Association and the Asian-Pacific Bar Association of Sacramento.Mr. Wang graduated from the University of California, Davis with a Bachelor’s Degree in Japanese and East Asian Studies, and also studied at the Waseda University in Tokyo, Japan.
Richard M. Wilner – Founding Partner
Richard M. Wilner is a founding member of Wilner & O’Reilly, APLC and is Board Certified by the State Bar of California as a Specialist in Immigration and Nationality Law. He is admitted to practice law in the State of California and before the U.S. District Courts for the Central, Northern and Southern Districts of California, the Northern District of Texas, the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court.Mr. Wilner has received the coveted Martindale-Hubbell AV Rating, the highest legal and ethical rating that one can receive from one’s peers in the legal community. Similarly, he has been awarded the title of Super Lawyer from 2007 to the present. He is best known for his work in advising Fortune 500 companies, middle and small market businesses, entrepreneurs and foreign nationals of extraordinary ability in athletics, arts, and sciences in the complex area of U.S. Immigration and Nationality Law.