How does the DHS’ 2018 regulatory agenda affect H-1B, H-4 and F-1 visa holders? Employers need to identify candidates now to beat the H-1B lottery cap.
The Department of Homeland Security (“DHS”) 2018 Regulatory Agenda contains many changes that may significantly affect Employers’ business immigration for their workforce as it relates to H-1b, F-1 and H-4 visa holders. Much to the dismay of many working class immigrants, DHS released its 2018 regulatory plan which is consistent with President Trump’s plan to Buy American Hire American. While the specifics of the Program will remain confidential until released in the Federal Register (probably around February 2018 but is also contingent on a notice and comment period), DHS’ Regulatory Agenda provides a framework on what will be likely be an inevitable landscape in 2018. First, DHS proposes a rule that will require H-1b candidates to pre-register for the H-1b lottery. Only those individuals selected in the lottery would then be able to submit a H-1b petition for the 2019 Fiscal Year. A further priority would be given to beneficiaries that DHS determines to be the most highly skilled workers consistent with President Trump’s Executive Order. Second, the proposed rule is expected to revise the requirements of an “employer-employee relationship” and to further cause employers to pay higher wages to H-1b employees. DHS expects to heighten the requirements of what is a “specialty occupation” in an effort to only recruit the best and the brightest. Third, the DHS is expected to terminate the H-4 Work Authorization which currently, since February 2015, permits spouses of H-1b holders to apply for an Employment Authorization Document (“EAD”). Fourth, it may affect current F-1 student visa holders who are currently permitted to work on STEM Optional Practical Training (“OPT”) for 24 months. It is expected that in late 2018, Immigration and Customs Enforcement (“ICE”) may propose a rule to entirely eliminate, restrict or provide further employer limitations on eligibility.
The H-1B lottery: Submit the petition within the first week
As many are aware, there are two lottery caps—one commonly referred to as the regular cap which is about 65,000 candidates per annum, and another referred to as the U.S. master’s cap which is about 20,000 candidates per year. Of the 65,000, 6800 are reserved for Chilean and Singaporean nationals under the Free Trade Agreements with their respective countries. To this end, USCIS may only approve up to a total of 85,000 candidates for their 2019 Fiscal Year (“FY”) which begins on October 1, 2018 and ends on September 30, 2019. As has been the case for many years, the regular and master’s cap application threshold is met within the first week of eligibility. USCIS begins accepting petitions for the FY 2019 on April 2, 2018. USCIS conducts the master’s cap lottery first before allowing any of the candidates that were not selected to also have an opportunity for a random selection in the regular cap—essentially getting two cracks at the opportunity to work in the U.S. Of course, there are some exceptions which include H-1B workers extending their status, transferring the H-1b from one employer to another, changing the terms of their H-1b employment or filing a concurrent H-1b position, among others. Employers should submit their H-1b petitions within the first five business days of the application process opening date (i.e. by April 6, 2018) because it is safe to assume that H-1B petition numbers will be exhausted within the first few days, and USCIS has a policy of waiting to run the lottery process for these five days regardless of if 65,000 petitions were received in the first day itself. Therefore, I recommend Employers identify which Employees may be “cap-subject” now and to contact their business immigration attorney to start the information gathering process now.
Here’s a list of employees that may be subject to the H-1b cap:
In summary, there are some significant, yet expected, changes resulting from the new Administration for H-1b, F-1 and H-4 visa holders. That being said, the H-1b lottery cap is still expected to be exhausted within the first week, so Employers should begin identifying who they may wish to sponsor now and gather the appropriate information so they can meet the filing deadline. It’s better to be early to save a valuable employee than to be lose their immigration status and permission to work for you.