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H-1B Visa Lottery Gets Last-Minute Overhaul in New Rule (1)

Jan. 30, 2019, 1:53 PMUpdated: Jan. 30, 2019, 8:52 PM

The lottery for H-1B skilled guestworker visas will be getting an overhaul a mere two months before it takes place.

A final rule released Jan. 30 by U.S. Citizenship and Immigration Services switches the order that the lottery is run to maximize the number of visas awarded to workers with advanced degrees from U.S. colleges and universities.

This year’s lottery, which likely will take place the first week in April, will be run first on all H-1B petitions, followed by a lottery for however many remaining slots for advanced-degree holders. Historically, the USCIS has run the lottery for the advanced-degree holder slots first.

The change is estimated to increase the number of advanced-degree holders selected in the lottery by 16 percent, or 5,340 workers each year, the USCIS said.

“It’s a sensible thing to do,” Howard University professor Ron Hira told Bloomberg Law Jan. 30. “The pool of people that we’re getting” in the H-1B program “is not optimal,” and reworking the lottery to favor advanced-degree holders is “a step in the right direction,” said Hira, a longtime advocate of the approach.

But reworking the lottery to favor advanced-degree holders “seems to run contrary to the plain language” of the Immigration and Nationality Act, immigration attorney Vic Goel of Goel & Anderson in Reston, Va., told Bloomberg Law Jan. 30.

“These simple and smart changes are a positive benefit for employers, the foreign workers they seek to employ, and the agency’s adjudicators, helping the H-1B visa program work better,” USCIS Director L. Francis Cissna said in a Jan. 30 statement. The regulation also furthers President Donald Trump’s “goal of improving our immigration system” by changing the lottery process so that “U.S. employers seeking to employ foreign workers with a U.S. master’s or higher degree will have a greater chance of selection in the H-1B lottery,” he said.

Preregistration Delayed

But the final rule delays the centerpiece of the regulatory change: a new requirement that employers seeking the visas preregister ahead of the lottery. That requirement won’t go into effect untithe l USCIS can set up the electronic process. Another notice will announce when the preregistration will be required.

“That’s probably the best development that’s come out of this,” Goel said. “I don’t know that anyone would’ve derived a real benefit from it this year.”

The H-1B lottery has become a staple of the business immigration landscape, as demand for the visas has far outstripped supply in recent years. There are 65,000 H-1B visas available each year, with an additional 20,000 allocated for workers with advanced degrees from U.S. colleges and universities.

The proposal was released at the end of November.

The finalization of the rule a little over a week after public comments were due raised some eyebrows, calling into question the seriousness with which the agency considered the 817 comments received.

The agency made a handful of changes to the final rule based on the comments.

In addition to issuing a Federal Register notice announcing the launch of the preregistration process, the USCIS each year will provide 30 days’ notice of the preregistration period. The original proposal didn’t provide a timeline for the notice.

The agency also is increasing the amount of time employers will have to put together their petitions after they’ve been selected in the lottery, from 60 to 90 days.

And employers will be allowed to put down the first day of the next fiscal year as the H-1B worker’s start date. The change will allow workers switching from student visas to H-1B visas to maintain their work authorization during the “cap gap” period between the end of the academic year and the Oct. 1 start of the fiscal year.

Back Burner

Cissna had wanted the preregistration system in place by the 2019 lottery, but that was a tall order considering the timing.

The agency had put this and other regulations on the back burner to prioritize publication of its “public charge” rule, a proposal to limit green cards based on immigrants’ likelihood of becoming dependent on public assistance.

A preregistration process “makes sense” as long as it’s done fairly, but “I’d like to see greater transparency” in the lottery process, Goel said.

The bigger concern lies in how the reordering of the lottery plays out, he said.

“Not every position that qualifies as a specialty occupation is one where a master’s degree is a requirement,” Goel said, so some industries and occupations where advanced degrees are less prevalent could wind up losing out.

That almost certainly will affect the information technology consulting industry—a target of the Trump administration—which relies heavily on workers with bachelor’s degrees, Hira said.

In fiscal year 2017, only 22 percent of H-1B approvals—including first-time petitions and visa extensions—going to top H-1B user Cognizant Technology Solutions were for workers with master’s degrees. Master’s degree holders made up only 19 percent of Tata Consultancy Services’ H-1B approvals that year.

“There’s no perfect selection process,” but the question is whether there’s one that “yields a better quality pool of candidates,” Hira said. “The consensus is the current system is not picking the best and brightest.”

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editors responsible for this story: Simon Nadel at snadel@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com