A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Monday, December 3, 2018

Proposed H-1B Registration System Favors Advanced Degree Holders

An electronic H-1B registration system has been proposed by the Department of Homeland Security (DHS) that would alter the yearly lottery selection process.

Each petitioner would first need to register online with USCIS during a designated period before the lottery selection process. They would provide basic information such as company name, address, and FEIN, the job title, company representative information, the beneficiary's personal and educational information, and attorney information. After this registration period, USCIS would then randomly select registered beneficiaries to fill the regular degree (65,000) and Master degree (20,000) caps. If less individuals have registered than the cap allows, then the registration period will be extended until the cap is met. If not, registration is closed and those that have been selected will be instructed to send in their completed H-1B applications during certain filing windows. Those that had registered but were not randomly chosen are still put on standby to be selected in the event that USCIS determines more are needed to meet the caps.

The current process has everybody spending time and resources to compile tens of thousands of complete H-1B applications before USCIS randomly sele
cts H-1B applications toward the cap. A large portion of these applications will not even be selected for processing. This proposed change is clearly to reduce paperwork on both the petitioner's and USCIS' end by having random selection take place before whole applications are sent in. The DHS estimates a total savings of $47.3 million to $75.5 million for unselected petitioners. Also, filing window periods would stagger the influx of applications, an improvement over the current yearly surge of applications leading up to April 1st. 

The way the regular and master caps are filled would also be changed. Currently, those with an advanced degree are chosen for the 20,000 Master's cap first. Those that are not chosen are then considered in the 65,000 regular cap pool. The proposal would reverse this -- advanced degree holders would be considered in the regular cap pool and then the Master's cap pool. Statistically, this increases the chances that applicants with advanced degrees from U.S. institutions will be selected for a H-1B visa.

While the reduced paperwork would be welcome, there is one glaring issue with this proposal. The current system already has instances of a petitioner using connected companies or divisions to put in multiple H-1B applications for the same employee. By simplifying requirements to become eligible for selection, the DHS would be making it easier for unscrupulous petitioners to flood the system with applications. The DHS does try to address this in its proposal. The requirement to register would include a mandatory attestation stating that there is a bona fide job offer and H-1B petition if selected. Still, this would require adequate monitoring and enforcement to have a meaningful effect.

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