The annual lottery for H-1B skilled guestworker visas could look very different in April if the plan just released by the government is put in place in time.
Under a proposed rule released Nov. 30, employers seeking the visas would have to preregister for them, meaning companies wouldn’t have to file a full petition with supporting documentation for the lottery.
It’s similar to one floated by U.S. Citizenship and Immigration Services in 2011, with one key difference: The lottery would be run first on all H-1B petitions, followed by a lottery for however many remaining slots there are for advanced-degree holders. The switch is expected to result in more advanced-degree holders obtaining H-1B visas than those with bachelor’s degrees.
The proposal is raising employers’ eyebrows, as it may not be the big cost saver the agency says it would be. Companies that rely on H-1B workers with bachelor’s degrees, or workers with advanced degrees obtained outside the U.S., also would be disadvantaged under the new process.
U.S. Citizenship and Immigration Services Director L. Francis Cissna has stated repeatedly that he wants the regulation finalized by the next lottery in April.
That could be a tall order, as there is a 30-day public comment period that starts when the proposal is officially published in the Federal Register, which is expected Dec. 3. The agency must analyze all comments to finalize the regulation, a process that could take more than a year, said Doug Rand, co-founder and president of Seattle immigration services company Boundless Immigration Inc.
The timing could create unintended consequences and disrupt the H-1B filing process, which has already started, according to a recent letter from the Compete America coalition.
The H-1B lottery has become a staple of the business immigration landscape, as demand for the visas has 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.
“These proposed regulatory changes would help ensure more of the best and brightest workers from around the world come to America under the H-1B program, including up to an estimated 16 percent in the number of selected H-1B beneficiaries with a master’s degree or higher from a U.S. institution of higher education,” USCIS spokesman Michael Bars said in an email to Bloomberg Law.
“Those seeking to obtain immigration benefits and work in the U.S. should succeed on merits of skill, ability, education, and potential contributions to American society, not a random and uncertain process,” he said.
The USCIS also is billing the proposed change as a money and time saver for both employers and the agency. Employers wouldn’t have to prepare a petition unless they’ve been selected, and the USCIS wouldn’t have to sort through hundreds of thousands of paper petitions just to run the lottery, it said.
“USCIS expects that the proposed electronic registration requirement would reduce overall costs for petitioners and create a more efficient and cost-effective H-1B petition process” for the agency, Bars said.
But businesses aren’t going to wait until they’ve been selected to put together their petitions, William Stock of Klasko Immigration Law Partners in Philadelphia told Bloomberg Law. The proposal says the registration period would start around 14 days before petitions would have to be filed.
“No client is going to let you wait” until two weeks before the deadline to start putting together a petition, Stock said.
There’s also the concern that employers could “game the system” by filing a bunch of H-1B preregistrations because of the relative ease of doing so, he said.
The proposal includes safeguards against that, the agency said. Employers couldn’t submit more than one registration for the same employee during a fiscal year, and there would have to be a bona fide job offer, it said.
Employers also would be required to submit a petition for the employee listed in the registration rather than a substitute, the agency said.
That may not be that big of a concern, Liz Espín Stern of Mayer Brown in Washington told Bloomberg Law. The heaviest users of the H-1B program are information technology consulting companies, which have been a prime target of the Trump administration, she said.
Those companies, many of which are based in India, are “very aware” of enforcement actions the administration is taking against companies that file “placeholder” petitions that may or may not get filled by an actual worker, Stern said. As a result, “they are pulling back” on the number of petitions they’re filing, she said.
Reordering the lottery would change the proportion of H-1B visas that go to advanced degree holders but likely wouldn’t increase the overall number of master’s degree holders who get the visas, Stock said.
That means the bachelor’s degree holders would be at a greater disadvantage, he said.
The unintended consequence: Bachelor’s degree holders seeking H-1B visas will be more likely to work for IT consulting companies, Stock said.
Those companies are used to high employee turnover and are more willing to take the risk that someone hired right out of school through the optional practical training program won’t get an H-1B visa later, he said.
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(Story updated to include comment from the USCIS.)