Published December 13, 2018
Each year, 85,000 new H-1B visas are released for foreign workers and their prospective U.S. employers, including 20,000 visas especially reserved for graduates of advanced degree programs in the U.S. (masters or higher, a.k.a. Masters Cap). In recent years, during the first week of filing eligibility, DHS/CIS receives roughly 2 ½ to 3 times the number of petitions as there are available visas. Toward advancing the goal of giving preference for foreign workers who graduated with an advanced degree from a U.S. educational institution, DHS/CIS is now proposing implementation of a process involving 2 major changes.
First, prior to filing of the actual petition, employers would electronically preregister under a proposed system where company information and an intention to file on behalf of a foreign national worker would be noted.
Then, from all those registered, DHS/CIS will pick the first 65,000 from the general pool of ALL petitioned workers, and then conduct a second lottery – but from a pool of only U.S. masters degrees or higher workers, for the remaining 20,000 advance degree visas (Masters Cap) supply. In other words, those with masters degrees or higher from the U.S. will have an enhanced shot at a visa – first for the general 65,000 supply, and then again from the supply specifically reserved for the U.S. masters or higher graduates. DHS/CIS envisions this plan will lead to the issuance of approximately 5,000 more visas to those with U.S. advanced degrees compared to past years.
After being advised they have been picked in the lottery, employers will be given a 60 day period in which to submit their actual H-1B petitions, with supporting documentation.
Advocates of this process say this will allow employers to avoid incurring unnecessary costs for the preparation and filing of petitions that are ultimately not picked for consideration. Those opposed to this proposal assert the process is contrary to the plain language of the law, since the newly proposed order and process of selection is the opposite of what is prescribed by the governing statute and regulation.
So far, we are only talking about a proposal, and there is nothing for employers and their prospective H-1B workers to do now, other than to keep an eye on whether and when this proposal is actually implemented. All developments on this topic will continue to be covered in this column.
PUBLISHED December 13, 2018– “IMMIGRATION LAW FORUM” Copyright © 2018, By Law Offices of Richard Hanus, Chicago, Illinois