Why Employers May Want To Identify Candidates Now To Beat The H-1B Lottery Cap
The Department of Homeland Security’s (DHS) regulatory agenda, released in December, contains many changes that may significantly affect employers, specifically those who hire H-1B, F-1 and H-4 visa holders. To the dismay of some working-class immigrants, the 2018 regulatory plan is consistent with President Trump’s executive order last spring to “Buy American and Hire American.”
While the specifics of the changes will remain confidential until released in the Federal Register (probably in February 2018, but this is also contingent on a notice and comment period), the agenda does provide a framework for changes, including:
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 an H-1B petition for the 2019 Fiscal Year (“FY”), which begins on October 1, 2018 and ends on September 30, 2019. Further priority would be given to beneficiaries that DHS determines to be the most highly skilled workers, again consistentwith President Trump’s Executive Order.
Another rule proposes to revise the definition of a “specialty occupation” as well as the definition of employment and employer-employee relationships. One outcome is that employers may need to pay higher wages.
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, current F-1 student visa holders who are currently permitted to work on STEM Optional Practical Training (“OPT”) for 24 months may be affected. It is expected that in October 2018, there will be a proposed rule to entirely eliminate,restrict or provide further employer limitations on eligibility to prevent fraud and abuse.
So what can employers do to prepare?
Get A Head Start
As many employers are aware, there are two H-1B lottery caps — one commonly referred to as the regular cap, which is 65,000 candidates per annum, and another referred to as the “U.S. master’s cap,” which permits 20,000 candidates per year. Of the 65,000, a total of 6,800 are reserved for Chilean and Singaporean nationals underthe 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. As has been the case for many years, the regular and master’s cap application threshold was 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 someexceptions, which include H-1B workers extending their status, transferring the H-1B from one employer to another, changing the terms of current 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 whether 65,000 petitions were received in the first day itself or not. 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. Employees that may fall into this category include F-1 student visa holders currently on OPT, J-1 academic interns, and TN, E-3, or L-1 status visa holders who arecurrently starting the green card filing process and may need to convert to H-1B status.
Once an employer has identified these employees, the next step is to start gathering information which includes but is not limited to:
- Employer information including gross/net income
- Federal tax ID number (and the actual SS-4 for companies sponsoring an H-1B visa for the first time)
- Number of employees
- Information related to the position including salary and benefits
- A detailed job description which is unique and demonstrable of a “specialty occupation” that requires the hiring of foreign labor
- The employee’s personal information, immigration status documents, degrees and certificates and pay stubs
In summary, these are significant but expected changes from the new administration. It’s better to start early to save a valuable employee than to risk it. But for affected employees and employers alike, rest assured that the process is not finalized yet, and it may be several months before any of these new rules take effect.