H-1B Program Changes

Prepare for H-1B Program Changes in 2019

Prepare for H-1B Program Changes in 2019

Each year, H-1B visas provide unique and exciting opportunities to thousands of qualified foreign professionals. Created in 1990, the program allows companies in “specialty occupations” to hire skilled foreign workers on an annual basis. This boosts the American economy, allowing employers to fill critical positions that may otherwise remain empty. Companies in STEM fields – science, technology, engineering, and math – especially utilize the H-1B program to acquire diverse skills sometimes hard to find on U.S. soil. Unsurprisingly, the H-1B program is thus very important to a diverse base of people and to the U.S. as a whole.

Important program changes are occurring for the fiscal year (FY) 2020 H-1B application season. This article discusses what changes will occur for this season and what employers and foreign professionals can expect in the future. As always, the best way to stay prepared is to work with an expert immigration attorney. April 1 is not far away – if you have questions, contact our team at Davis & Associates for a free initial consultation.

Trump Administration Seeks H-1B Reform

In November 2018, the Trump administration announced proposed changes to the H-1B program, intended to simplify the registration process and make final selection more skill-based. These reforms were a direct result of the president’s “Buy American Hire American” executive order (EO), which demanded Trump officials explore ways to make the H-1B program benefit the “most skilled and highest paid” applicants. The proposed changes were posted to the Federal Register and open to public comment for roughly one month.

During this time, speculation surrounded the proposed H-1B updates. Would they be implemented for the FY 2020 application season, which begins April 1, 2019? Due to the shortened time allotted for public comment, many believed such a possibility was likely. We discussed the original announced changes in a previous article (read here).

H-1B Changes on the Horizon

On January 30, DHS posted its “final rule” regarding the H-1B updates to the Federal Register. In an announcement from the U.S. Citizenship and Immigration Services (USCIS), Director Cissna stated that the “simple and smart” H-1B updates will “[help] the H-1B program work better.” Below, we discuss what you can expect during the FY 2020 application season. These changes, more or less, mirror those originally proposed in November 2018.

Selection Process Changes

The USCIS allots 65,000 standard H-1B visas annually. An additional 20,000 “cap exemption” visas are also available for specialized applicants. “Cap exemption” applicants are those H-1B candidates who have advanced degrees (Master’s or higher) from an American institution. Because of the overwhelming popularity of the H-1B program, most years the USCIS receives more applications than available visas, triggering a lottery. This occurs if petitions exceed the annual cap within five business days of availability, which begins April 1 of each year.

Previously, “cap exemption” candidates were chosen first, with any remaining applicants then entering the standard lottery. But, the Trump administration aims to make the overall H-1B application process more about skill and less about luck. This means that a large focus has been on favoring “cap exemption” applicants, who on average possess more training and more specialized skillsets.

Starting this April, the lottery selection order will reverse, and all “cap exemption” candidates will be considered in the standard lottery. After all 65,000 visa beneficiaries are chosen, any remaining “cap exemption” candidates will still be eligible for the specialized lottery. This means that 20,000 additional applicants will be present in the standard lottery. The USCIS estimates that this could increase highly-skilled beneficiaries by roughly 16%.

So What Does It Mean?

What does this change mean for applicants? Nothing, really. It won’t change the way you apply, simply the way the USCIS considers your application. For employers, this update means that those companies with higher-skill requirements may be more likely to receive H-1B applicants.

Electronic Registration System

One change that will not occur right away is an update to the H-1B application process and system. Currently, companies complete entire petitions for every applicant ahead of time, and submit hard copies via mail. In the future, the burden on employers will lessen. This will happen via an electronic registration system.

Further, employers will no longer be required to submit full petitions at the start of the application season. This is in response to the high potential for a lottery system – when a lottery triggers, it means that many employers won’t receive their desired skilled workers. Simple registration saves time and effort, especially whenever many applicants do not receive visas.

Under the new system, both companies and candidates will register ahead of time online. If the lottery chooses an applicant, they would then complete the application process and their employer would submit full petition paperwork.

Further Testing Needed, FY 2021 Rollout Likely

While the USCIS hoped to implement this new registration system by FY 2020, it was not feasible. The system should be properly tested and vetted, avoiding heartbreak should a mass failure occur due to lack of testing or planning. Additionally, preparing applicants and their legal representatives for such a large change so quickly would likely sow chaos.

Instead, the USCIS will complete testing and ensure the electronic application system is fully functional before implementation. This is ideal and will benefit the H-1B program in the long run. The USCIS stated in its January 30 announcement that it will conduct outreach to heighten awareness once the system is ready (likely for FY 2021).

Legal Challenges Possible

Unfortunately, legal challenges may upend the H-1B FY 2020 application season. It is possible that certain companies who will not benefit from the recent changes will sue the Trump administration via U.S. courts. If this occurs, and a judge issues an injunction, it may throw the entire system into disarray. Hopefully this will not happen, but the Wall Street Journal discusses the possibilities.

Consult an Expert H-1B Attorney

With the FY 2020 H-1B application season in flux, the best way to remain “in the know” is through an immigration attorney. Experienced immigration lawyers stay up-to-date on all application requirements and changes so that you are safe and secure. This allows you to relax during an already nerve-wracking and stressful process!

When you hope to live and work in the U.S., or hope to hire that perfect foreign professional, don’t leave it to chance. While no outcome is certain, immigration lawyers help prepare you and will complete all paperwork correctly. Further, if any questions or challenges arise, they can help! Davis & Associates serves clients across Florida & Texas. Contact us today to schedule a free consultation with one of our skilled attorneys.