FAQ: Proposed H-1B lottery reform regulation
  • Early in December, U.S. Citizenship and Immigration Services published a proposed regulation that would significantly reform the H-1B cap selection (lottery) US Immigrationprocess. The proposed regulation would introduce two main changes: (1) USCIS would reverse the order of the regular and advanced-degree lotteries to increase the likelihood that individuals holding U.S. advanced degrees would be selected, and (2) USCIS would introduce a mandatory online registration system for employers seeking to sponsor H-1B candidates under the annual cap.

    BAL produced an FAQ on the proposed regulation and how employers should prepare for the upcoming cap season. The full FAQ is available here and key points of the proposed rule are below.

    Online preregistration system. The proposed rule would create a mandatory preregistration system requiring employers who intend to file H-1B cap petitions to submit an online registration for each intended beneficiary petition during a designated registration period before April 1. USCIS would then conduct a lottery and select enough registrations to meet the H-1B cap numbers. According to the proposal, petitioners could therefore wait until they know a petition has been selected before filing the Labor Condition Application and the full H-1B petition.

    • The registration period would begin at least two weeks before April 1 and would last at least two weeks. USCIS would announce the dates of the registration period at least 30 days in advance by posting on its website.
    • The registration would require information including the employer's name, address and Employer Identification Number; the H-1B candidate's name, date of birth, country of birth and citizenship, gender, passport number, and whether they hold an advanced degree from a U.S. institution; the employer's representative, the employer's attorney, and other information requested by the system.
    • Petitioners would be limited to one registration per individual for the same fiscal year. The government would also track how many registrations result in filed petitions and could investigate employers who show a pattern of filing registrations for numerous individuals without following up with petitions.
    • The initial registration period would be limited to H-1B candidates intending to start work Oct. 1.
    • USCIS is not proposing to charge a fee for the registration.

    Selection process. The proposed rule would reverse the order in which H-1B cap petitions are selected for adjudication. Under the current process, USCIS first determines if there is a sufficient number of petitions to reach the 20,000 advanced-degree exemption and conducts a random lottery on that population first, then adds unselected petitions to the second pool and conducts a lottery for the regular cap of 65,000.

    • Under the proposed rule, USCIS would include all advanced degree holders in the lottery for the regular cap, which would be conducted first. USCIS would then conduct a second lottery if there are enough remaining advanced-degree holders to meet the advanced-degree exemption. All advanced-degree petitions would count toward the regular cap first, even in years when a lottery is not required, and are intended to increase the odds of selection for advanced-degree holders.
    • The rule proposes that petitioners whose petitions are selected will be notified that they are eligible to file an H-1B petition within a designated filing period. The duration of the period will be at least 60 days. USCIS may stagger filing periods to regulate processing.

    Suspension clause. The proposed rule would allow USCIS to temporarily suspend the registration process during any fiscal year due to technical challenges with the registration process and/or the new online registration system.

    Analysis: USCIS is working to implement the regulation and the necessary electronic registration system in time for the coming H-1B cap season, but acknowledged in the proposal that it may suspend the registration procedures if it is unable to implement the system before April 1. Employers and other immigration stakeholders are encouraged to submit public comments to the agency during the comment period that opened Dec. 3 and closes Jan. 2.

    This information has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com. To follow additional updates on the proposed rule, please subscribe to our newsletter.

    For additional legal analysis, view our BAL Backgrounder here. To stay abreast of further updates, please subscribe to our newsletter.
    This post has been provided by Berry Appleman & Leiden (BAL) Corporate Immigration. For more information please contact: Kristi Paulsen - Relocation Today or Jennifer Fisher - BAL

    About Berry Appleman & Leiden LLP
    Founded in 1980, Berry Appleman & Leiden (BAL) provides comprehensive global immigration services from seventeen offices across the U.S. and Globe. BAL manages global visa matters and customized application approaches for work permits, business visas, and residence permits in more than 100 countries. With a single cost center for worldwide operations, BAL offers centralized management with regional and local support for the complete spectrum of global immigration matters.

    Source: Berry Appleman & Leiden LLP
    Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@balglobal.com.

    About Relocation Today: Relocation Today, Inc. has been joyfully developing and serving corporate clients global relocation needs, supporting recruiting efforts & managing summer intern housing programs since 1994. For more information on services or relocation benefits policy review please contact: Richard Rudeen, Business Development Manager richardr@relocation-today.com 952.278.0530

FAQ: Proposed H-1B lottery reform regulation
  • Early in December, U.S. Citizenship and Immigration Services published a proposed regulation that would significantly reform the H-1B cap selection (lottery) US Immigrationprocess. The proposed regulation would introduce two main changes: (1) USCIS would reverse the order of the regular and advanced-degree lotteries to increase the likelihood that individuals holding U.S. advanced degrees would be selected, and (2) USCIS would introduce a mandatory online registration system for employers seeking to sponsor H-1B candidates under the annual cap.

    BAL produced an FAQ on the proposed regulation and how employers should prepare for the upcoming cap season. The full FAQ is available here and key points of the proposed rule are below.

    Online preregistration system. The proposed rule would create a mandatory preregistration system requiring employers who intend to file H-1B cap petitions to submit an online registration for each intended beneficiary petition during a designated registration period before April 1. USCIS would then conduct a lottery and select enough registrations to meet the H-1B cap numbers. According to the proposal, petitioners could therefore wait until they know a petition has been selected before filing the Labor Condition Application and the full H-1B petition.

    • The registration period would begin at least two weeks before April 1 and would last at least two weeks. USCIS would announce the dates of the registration period at least 30 days in advance by posting on its website.
    • The registration would require information including the employer's name, address and Employer Identification Number; the H-1B candidate's name, date of birth, country of birth and citizenship, gender, passport number, and whether they hold an advanced degree from a U.S. institution; the employer's representative, the employer's attorney, and other information requested by the system.
    • Petitioners would be limited to one registration per individual for the same fiscal year. The government would also track how many registrations result in filed petitions and could investigate employers who show a pattern of filing registrations for numerous individuals without following up with petitions.
    • The initial registration period would be limited to H-1B candidates intending to start work Oct. 1.
    • USCIS is not proposing to charge a fee for the registration.

    Selection process. The proposed rule would reverse the order in which H-1B cap petitions are selected for adjudication. Under the current process, USCIS first determines if there is a sufficient number of petitions to reach the 20,000 advanced-degree exemption and conducts a random lottery on that population first, then adds unselected petitions to the second pool and conducts a lottery for the regular cap of 65,000.

    • Under the proposed rule, USCIS would include all advanced degree holders in the lottery for the regular cap, which would be conducted first. USCIS would then conduct a second lottery if there are enough remaining advanced-degree holders to meet the advanced-degree exemption. All advanced-degree petitions would count toward the regular cap first, even in years when a lottery is not required, and are intended to increase the odds of selection for advanced-degree holders.
    • The rule proposes that petitioners whose petitions are selected will be notified that they are eligible to file an H-1B petition within a designated filing period. The duration of the period will be at least 60 days. USCIS may stagger filing periods to regulate processing.

    Suspension clause. The proposed rule would allow USCIS to temporarily suspend the registration process during any fiscal year due to technical challenges with the registration process and/or the new online registration system.

    Analysis: USCIS is working to implement the regulation and the necessary electronic registration system in time for the coming H-1B cap season, but acknowledged in the proposal that it may suspend the registration procedures if it is unable to implement the system before April 1. Employers and other immigration stakeholders are encouraged to submit public comments to the agency during the comment period that opened Dec. 3 and closes Jan. 2.

    This information has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com. To follow additional updates on the proposed rule, please subscribe to our newsletter.

    For additional legal analysis, view our BAL Backgrounder here. To stay abreast of further updates, please subscribe to our newsletter.
    This post has been provided by Berry Appleman & Leiden (BAL) Corporate Immigration. For more information please contact: Kristi Paulsen - Relocation Today or Jennifer Fisher - BAL

    About Berry Appleman & Leiden LLP
    Founded in 1980, Berry Appleman & Leiden (BAL) provides comprehensive global immigration services from seventeen offices across the U.S. and Globe. BAL manages global visa matters and customized application approaches for work permits, business visas, and residence permits in more than 100 countries. With a single cost center for worldwide operations, BAL offers centralized management with regional and local support for the complete spectrum of global immigration matters.

    Source: Berry Appleman & Leiden LLP
    Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@balglobal.com.

    About Relocation Today: Relocation Today, Inc. has been joyfully developing and serving corporate clients global relocation needs, supporting recruiting efforts & managing summer intern housing programs since 1994. For more information on services or relocation benefits policy review please contact: Richard Rudeen, Business Development Manager richardr@relocation-today.com 952.278.0530