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High-Stakes Lottery for H-1B Visas May Become Simpler Next Year

Oct. 17, 2018, 3:22 PM

Companies competing for a limited number of H-1B skilled guestworker visas could find the process simpler come 2019, the director of the program said.

Further changes also may roll back provisions allowing the spouses of H-1B visa holders to obtain work permits.

The H-1B visas are extremely popular in the tech industry, especially among information technology staffing companies such as Cognizant Technology Solutions, Tata Consultancy Services, and Infosys. Amazon, Microsoft, Google, and Apple also hire a lot of workers on H-1Bs.

Employers may be able to preregister electronically for the annual lottery, and then file complete petitions if they’re selected. Employers currently have to put together full paperwork at the start of the process.

U.S. Citizenship and Immigration Services Director L. Francis Cissna also said his “top priority” for the agency is to move to all-electronic applications and petitions. “It’s going to happen before the end of 2020,” Cissna said in an interview with Bloomberg Law. “Indeed, we’re so certain it’s going to happen that we’re already planning for the electronic environment.”

Cissna said he hopes to have a new regulation “in place, implemented” in time for the next H-1B cycle that starts in April. The process should be easier on employers and agency staffers alike, he said."If you don’t have to file and go through the hassle and effort and cost of preparing a full-blast petition” without knowing if you’re even selected in the lottery, “I think that’s a lot easier than the current situation,” he said.

The lottery has been held annually for the past several years because demand for the visas far outstrips supply. Under the law, there are 65,000 H-1B visas available each year, plus an additional 20,000 for workers with advanced degrees from U.S. colleges and universities.

H-1B Spouse Work Permits

Also on tap to come out by the end of 2018 is the agency’s long-promised proposal to rescind a 2015 regulation providing work permits to the spouses of H-1B workers who are waiting for green cards.

The program created by the regulation has handed out more than 90,000 work permits, mostly to women from India. Since word got out that the agency was planning to revoke the regulation, permit holders have been anxious about the effects. Many immigrant couples made major financial decisions based on having a second income, such as buying homes and starting businesses.

Immigration attorneys also have vowed to sue over the change even before the details have emerged.

Cissna said the agency is following the law. There are “very good reasons why you might want to have H-1B spouses be able to work,” and many of those spouses are “very highly skilled,” he said. “If the spouse can’t work, that might prevent that person from wanting to come over or stay,” but that’s something Congress should fix, he said.

“The reason why we’re proposing rescinding it is not because we don’t desire these people to have employment authorization,” Cissna said. It’s because, “amongst other reasons, it doesn’t appear to have been the intent of Congress to grant them work authorization,” he said.

The Immigration and Nationality Act provides work authorization to the spouses of L-1 intracompany transferee visa holders and the spouses of E treaty trader or treaty investor visa holders, Cissna said. “Spouses of H-1Bs are not in the INA because Congress didn’t even talk about H-1B spouses,” he said.

“I want to, after these four years, ensure that the agency once again is right with the law,” Cissna said. The culture of the agency “should be one of fidelity to the law, wherever that takes us,” he said.

His reasoning echoes the arguments made by a group of U.S.-born tech workers who were displaced by H-1B workers brought in by contractors. Their lawsuit against the regulation has been on hold for nearly a year as the administration continues to promise that a proposal to undo the regulation is forthcoming.

“I would expect that before the end of the calendar year, the proposed rule will probably be out,” Cissna said.

Further Tinkering?

Whether the USCIS tinkers more with the H-1B lottery is still up in the air.

The description in the most recent regulatory agenda adds that the proposal “may include a modified selection process, as outlined in” President Donald Trump’s Buy American and Hire American executive order.

The order directs the USCIS and other immigration agencies to “suggest reforms to help ensure that H-1B visas are awarded to the most skilled or highest-paid petition beneficiaries.”

“There may be ways that we could by regulation achieve, to a certain degree, that goal,” Cissna said. But there are “very limited ways that we could do that,” he said.

“If we can see a way to do something lawfully that permits us to achieve that goal, OK, then we’ll propose it,” he said. “We’re not going to propose something” that “we created out of thin air or based on some spurious authority that doesn’t exist,” Cissna said.

To contact the reporter on this story: Laura D. Francis in Washington at

To contact the editors responsible for this story: Terence Hyland at