H-1B Lottery Dreams for Fiscal Year 2020

On April 1, 2019, U.S. employers with needs for foreign professional, specialty occupation workers will have the once yearly opportunity to request the much needed and sought after H-1B visa in behalf of these potential employees. This year, however, it’s possible that new rules will govern and the impact of these rules could prove even more problematic to the U.S. employers and foreign nationals that depend on the H-1B program.

Each fiscal year there are 65,000 H-1B visas available for the professional, specialty occupations (occupations that require a theoretical and practical application of a body of highly specialized knowledge for which the minimum educational attainment is a bachelor’s degree), plus an additional 20,000 visas available for foreign nationals who have earned a U.S. master’s degree (advanced degree cap) for temporary employment in the U.S.

Since 2014, U.S. Citizenship and Immigration Services (USCIS) has consistently received far more H-1B petitions than visas available, with the highest receipt for the fiscal year 2017 (received April 1-7, 2016) of 236,000 petitions. This left almost 2/3’s of the received petitions without adjudication, the same number of employees without work authorization, and U.S. employers without qualified staff to meet their business needs. Last year, there were 190,098 petitions received in the first 5 days.

On November 30, 2018, USCIS announced notice of proposed rulemaking that will change how employers seek H-1Bs with the implementation of an electronic registration process and a change in how the lottery will be conducted when there are more petitions filed than there are visas available. The electronic registration procedures could be beneficial for a more streamlined lottery system but given the late proposal so close to the filing deadline of April 1, employers and employees alike are concerned about logistics. USCIS indicates that it will conduct the H-1B lottery from the pool of timely-filed electronic registrations and only those who are selected will be eligible to file a full petition and receive an adjudication. Those selected would be notified that they are eligible to file an H-1B petition within a designated 60-day filing period and filing periods may be staggered by USCIS.

USCIS claims that the change in the selection of petitions will increase the number of H-1B beneficiaries (employees) with master’s or higher degrees. Practically, the order of selection does not impact the fact that those foreign nationals with U.S. master’s degrees will still get two chances to be selected in the lottery. Previously, the master’s cap was pulled first and those remaining in the pool had an equal chance as all others to be selected. Under the proposed change, the full regular cap will be pulled and then the master’s cap will be pulled. USCIS indicates that this will increase master’s or higher degree petition selection by as much as 16% or 5,400+ workers, and will include the most skilled and highest paid beneficiaries.

The proposed rule is expected to reduce costs, administrative burdens, and wait time for notification of cap selection. Overall, the proposal makes sense for updating and streamlining a process that numerous employers and foreign nationals use on a yearly basis. The proposed rule is available in the Federal Register with a comment period open until January 2, 2019.

If you are an employer with a need to petition for an H-1B employee, or a foreign national hoping to win the lottery this fiscal year 2020, contact our office for a consultation and evaluation of the best plan for your future in the U.S.