With Comment Period Expired, Uncertainty Remains About H-1B Registration Process

Written by Walter Ewing

January 2 marked the final day for comments on a proposed rule by U.S. Citizenship and Immigration Services (USCIS) that would implement a new registration requirement for H-1B visas for well-educated foreign professionals. This proposal would require employers looking to hire H-1B workers to first register electronically with the agency during a specified registration period.

Hasty implementation of the proposal in 2019 could disrupt the Fiscal Year (FY) 2020 H-1B petition process and impose significant costs on employers. The proposed rule would also change how H-1B visa petitions are counted, likely restricting the ability of businesses to get the most qualified workers. 

The most obvious problem with the proposed registration system is that it is not yet functional, yet USCIS is counting on it being in place by April 1—which seems unlikely. Even if the system is up and running in time and performs as expected, it would still wreak havoc on the H-1B petition process. 

Companies have already devoted resources to petitioning for H-1B workers under the current system. Having to then switch to a new system at the last minute would be costly, not to mention disruptive to businesses trying to hire the workers they need in a timely fashion. This would be particularly harmful to smaller businesses, which have fewer resources to switch gears in the middle of the petition process. But even big businesses could suffer from a crushing workload in a short span of time if they suddenly have to file multiple petitions under a new system only weeks before the FY 2020 H-1B season begins. 

As for the proposed change in the way petitions for H-1Bs are counted, the harm to employers is less obvious yet costly all the same. Currently, there are two pools of H-1B workers—one in which USCIS selects 20,000 petitions filed for graduates of certain U.S. master’s degree programs (or higher) that are exempt from the annual cap of 65,000; and another pool of applicants who fall under the cap. 

Since demand usually exceeds supply for H-1B visa numbers, USCIS set up a lottery for each of these two pools. The 20,000 U.S. master’s degree petitions are the first selected by lottery. Then, all remaining petitions are eligible for another lottery. 

Under the new proposed rules, however, USCIS would reverse the process. It would first conduct the lottery using all H-1B petitions. Then, after that lottery is complete, USCIS would run a second lottery restricted to all remaining “master’s exempt” petitions. The net result of this change would be an increase in the number of petitions selected for workers with U.S. master’s or higher degrees. Consequently, a foreign national who recently graduated with a master’s degree from a U.S. university might have a significantly better chance of getting an H-1B visa number than a much better-qualified worker who has years of professional experience and a Ph.D. from a foreign university. 

Employer and industry groups such as the U.S. Chamber of Commerce have urged USCIS to delay implementation of the new registration system until after the FY 2020 petition season, giving businesses more time to adjust before the next round of H-1B “cap subject” petitions. They are also urging USCIS to reconsider changing the order of the H-1B lotteries so that employers have maximum flexibility to hire those workers best suited to particular jobs. 

As it now stands, a great deal of uncertainty surrounds the H-1B petition process this year. Reflecting the anxiety this has created among employers, more than 750 comments to the proposed rule have been filed. USCIS should take this feedback seriously—and think twice about hurriedly implementing an unfinished system that changes the way H-1B petitions are filed.

 

Source: http://immigrationimpact.com/ 

http://www.inmigracionyvisas.com/a3985-Uncertainty-Remains-About-H1B-Registration-Process.html

USCIS Proposed H1-B Registration Rule Creates More Uncertainty for Employers

 

Written by Leslie Dellon

Just months short of the normal starting date for the annual H-1B petition process, USCIS has proposed major changes. U.S. employers who rely on this visa category, which is for jobs that require a bachelor’s or higher degree in a “specific specialty” or equivalent at the entry-level, are now in limbo, unsure whether these changes will be implemented before the normal petition-submission date. 

Just last week, USCIS issued a proposal to change the current system for H-1B “cap-subject” petitions. The proposal has two components: requiring employers to register online in advance to be eligible to submit an H-1B petition and reversing the order in which petitions are selected. 

Currently, USCIS selects petitions for the 20,000 “master’s exemption” first (for workers with a master’s or higher degree from U.S. colleges or universities that meet certain requirements). Any of these not selected are included when USCIS selects petitions for the 65,000 “cap.” (Selection is only the first step: USCIS has to accept a selected petition for filing, and then decide whether to approve.) 

USCIS has provided a 30-day comment period, ending January 2, 2019. It appears that USCIS wants to proceed with the change in the selection process for April 2019, even if—as is likely—the registration system is not ready. 

As proposed, USCIS would provide at least 30 days’ advance notice, through its website, of the registration start date. The registration period would run for at least 14 days, beginning at least 14 days before the first business day in April on which H-1B petitions could be filed. 

When registering, the employer would have to identify the foreign national it intends to hire. As a result, the employer would have less time to consider hiring foreign nationals who need an H-1B classification. 

When the initial registration period ends, if USCIS has more registrations than required for visa number allocation, the agency will hold a “lottery,” but keep the unselected registrations “on reserve” for that fiscal year. If there are less registrations than needed, then USCIS will open another registration period. 

For any registrations selected, USCIS will notify employers and provide at least 60 days within which to file. USCIS anticipates that it will stagger the filings to help the agency manage its workflow. 

The proposal increases uncertainty because employers will need to proceed as if they will be required to register but also will need to prepare their H-1B petitions since registration is unlikely—and they will not know if their petitions are less likely to be selected than before if the petition does not fall within the “master’s exemption.” 

The registration process also injects even greater uncertainty than currently exists as to when USCIS may make a decision on a petition—because USCIS will control how long the registration period lasts and the time period during which a selected registrant may file an H-1B petition. 

USCIS describes the proposal as a “merit-based” rule in support of President Trump’s Buy American and Hire American Executive Order to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” Since current law does not have a “most-skilled” or “highest-paid” hierarchy for H-1B eligibility, it is questionable whether USCIS could accomplish this through regulation. But even apart from its legality, it remains to be seen whether the proposal would favor those with master’s degrees from U.S. schools that meet the “master’s exemption” requirements. 

USCIS assumes that “master’s exemption” petitions would be for jobs requiring more skills and at a higher salary. But the “master’s exemption” is determined by the degree the beneficiary holds. 

The job offered to the beneficiary may or may not require a master’s degree. Also, the salary an employer offers depends on several factors, such as the type of job, the geographic location, and whether prior work experience is required. 

With these variables, there are many situations in which a job requiring a bachelor’s degree and work experience would be the “most-skilled” and “highest paid.” 

Also, what makes a U.S. master’s degree from a low-ranking U.S. university more meritorious than, say, a Ph.D. from Oxford. 

It also is possible that the proposed new selection order will harm a particular industry, or a particular region, which could reduce the income and opportunities for U.S. workers. 

The agency acknowledges that it “has not been able to determine how this may impact particular industries currently submitting H-1B cap petitions for individuals without master’s degrees … and how this may impact particular types of workers” and “welcomes input.” Comments should be submitted to furnish the critical data that USCIS lacks.

Source: www.immigrationimpact.com 

http://www.inmigracionyvisas.com/a3962-Proposed-H1B-Registration-Rule-Creates-More-Uncertainty-for-Employers.html