H-1B UPDATE: USCIS Proposes New H-1B Cap Rules

On December 3, 2018, USCIS proposed a number of regulatory changes [1] to the H-1B Visa, a temporary visa category that allows U.S. employers to petition a foreign professional worker for employment in a “specialty occupation,” or an occupation that typically requires at least a bachelor’s degree or the equivalent.

Under the proposed regulations, employers seeking to file cap-subject H-1B Petitions will be required to register online during a 14-day registration period sometime prior to April 1st. At the time of mandatory registration, employers would not be required to pay a filing fee, submit a certified Labor Condition Application (LCA), or file a complete H-1B Petition. Rather, the employer would be asked to provide only basic information regarding the employer and the beneficiary, including, but not limited to, the following:

  1. The employer’s name, employer identification number (EIN), and employer’s mailing address;
  2. The employer’s authorized representative’s name, job title, and contact information (telephone number and email address);
  3. The beneficiary’s full name, date of birth, country of birth, country of citizenship, gender, and passport number;
  4. Whether the beneficiary has obtained a master’s or higher degree from a U.S. institution of higher education;
  5. The employer’s attorney or accredited representative, if applicable (a Form G-28 should be also submitted electronically, if applicable); and
  6. Any additional basic information requested by the registration system or USCIS.

Following the proposed mandatory online registration period, USCIS will utilize a computer-generated lottery system to determine which H-1B registrants have been selected for further processing. The selected H-1B registrants would be given at least 60 days to submit a certified LCA, complete the H-1B Petition and supporting documents, and the requisite fees.

Additionally, USCIS intends to prioritize petitions filed on behalf of beneficiaries who have attained a master’s or higher degree from a U.S. institution of higher education by conducting the lottery for the 65,000 H-1B visas prior to the lottery for 20,000 additional H-1B visas reserved for U.S. Masters or Ph.D. degree holders.

Though it is unclear whether these proposed changes to the H-1B visa program will be implemented as written, the 30-day public comment period closes on January 2, 2019, indicating that USCIS may intend to implement these changes as soon as next year.

Additionally, in a proposed regulation, the USCIS is proposing the rescission of employment authorization for spouses of H-1B visa holders. This proposed regulation is expected to be published for public review and comment before the end of 2018. [2]

U.S. Immigration Law Group, LLP will continue to monitor any proposed changes to the H-1B visa program. Should you have any questions and would like to schedule a consultation with our firm regarding the H-1B process, please do not hesitate to contact our office at (714) 786-1166

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