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Proposed Changes to the H-1B Legal Landscape are Coming. Are You Ready?

By Peek & Toland on December 18, 2018

H-1B Cap season is quickly approaching; the visas are capped at 85,000 issued per year (65,000 initially allocated and 20,000 cap exempt advanced degree numbers). The Department of Homeland Security has proposed rule changes that may affect you.

In 2017 the Trump Administration issued the “Buy American Hire American” executive order, which greatly changed the immigration landscape. As a result, employment-based immigration processes have encountered increased scrutiny. For example, one section of the order instructed The Department of Homeland Security to, “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest paid petition beneficiaries.” The recently proposed order strives to do that.

The proposed change comes in two parts:

  • An online registration system would be put into place. H-1B Petitioners would create an online account prior to filing the petitions and only those selected accounts would submit petitions to USCIS.
  • The “cap” process would be reversed. In an attempt to increase the number of advanced applicants, all applicants (including those marked as “Masters Cap Exempt”) would compete for the initial 65,000 H-1B’s. Once all initial numbers are used, then the remaining advanced degree holders would compete for the remaining 20,000 slots.

The first change would require petitioning companies and applicants to provide basic information (i.e. employer name, address, EIN, etc. as well as beneficiary name, country of citizenship, degree held, etc.). It would also require employers to confirm their intent to file an H-1B application for that specific beneficiary. A separate registration would need to be filed for each beneficiary. Government spokespersons have said this would save companies money by ensuring they did not have to pay filing fees until the petition was selected. The secondary change, per USCIS Spokesman Michael Bars, “would help ensure more of the best and brightest workers from around the world come to America under the H-1B program”.

The proposed order is similar to a hotly contested proposed order under the Obama Administration. In 2011 when this similar order was considered the American Immigration Lawyers Association (AILA) responded to The U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services raising their concerns. The general concerns of the association, consisting of over 11,000 immigration attorneys, were:

  • The registration system would create a rush of registrations, creating a false H-1B Demand;
  • The Cost to Benefit assessment was flawed; and
  • This would add an unnecessary layer to an already complicated process.

The government has posted the currently proposed changes on the Federal Register, and is taking comments until January 2, 2019. USCIS has informed the public that they would like to enact this change prior to the FY2020 H-1B Cap season, beginning April 1, 2019.

What does this mean for you as an employer?

While it is unlikely that these changes will be enacted in 2019 due to regulatory requirements, H-1B visas will still be limited to 85,000 and employers will need to be prepared to file as early as possible.

Peek & Toland has a strong team of immigration attorneys, including Partner Jeff Peek and Senior Corporate Immigration Attorney, Maria Pilar Llusá. With over seventeen (17) years of Employment Immigration experience, they are prepared to tackle any issues your company may have with regards to their immigration needs.

Looking for legal help for your H-1B applications?

To help employers get a jump start and be prepared for a successful cap season, our firm will be offering free 30 minute consults to companies with new H-1B cap season needs starting January 3, 2019.

It is important you be prepared and informed of the requirements for the H-1B Cap season. Please contact our offices to schedule your consult today. We look forward to working with you and serving all your immigration needs.

Posted in Citizenship, Immigration, Immigration Reform, Visas

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