New USCIS H-1B Rule & Beyond: What to Expect for This H-1B Cap-Filing Season
A short guide to what's new for this year's H1B cap filing season, and what is coming for next year.
Big Takeaways from the Final RuleUSCIS published a new Final Rule on January 30, 2019, taking effect on April 1, 2019, which reverses the order of the H-1B Cap selection lottery starting this year, and institutes a pre-registration process for future years. In furtherance of Executive Order 13788 (Buy American, Hire American), the new Final Rule mandates that H-1B visas should go to the most-skilled and highest-paid workers.
The Final Rule raises the chances of selection for US Master*s degree graduates of non-profit institutions of higher education, by reversing the order of the H-1B Cap random selection lottery. Now, the regular cap lottery goes first - the pool includes all US Master*s-Cap eligible cases along with those only eligible for the Regular Cap. Then, once all the regular cap slots have been filled, the Master*s cap lottery will be conducted. This procedural reversal reduces the chances of selection for H-1B cases for workers with graduate degrees from foreign institutions, and cases where the worker has only a Bachelor*s degree related to the job offer.
The new rule also mandates an electronic pre-registration process in future years, under which only employers who have pre-registered will be eligible to file cap-subject petitions, during a 90-day period subsequent to the electronic registration period and lottery selection. Each H-1B registration will be specific to the named employer, the job offered, the named sponsored worker, the designated worksite(s) and offered salary. The pre-registration system will not be implemented for this year*s H-1B cap filings, as USCIS does not have enough time to get the registration system up and running in time.
What else can we expect to see in this year*s H-1B adjudications?In addition to more advanced US degrees, the new rule also makes explicit a preference for jobs offering higher salaries. The rule does not make explicit, but tacitly suggests that officers may now have even more discretion to deny cases, both for wages deemed too low, and for jobs they claim do not meet the definition of a professional specialty occupation, particularly those that allow multiple areas of study in the degrees deemed acceptable as qualification for the job. Practitioners have already noted an uptick in Requests for Evidence and denials of non-cap and cap-exempt H1B cases involving challenges to the professional nature of the occupation, and challenges alleging a mismatch between the LCA and the petition where USCIS claims the wage offer is inappropriate to the job classification and the worker*s level of education and experience, per the USDOL National Prevailing Wage & Helpdesk Center wage level guidance and worksheets, which can be found at Appendix B & C, or pages 23-24 of the PDF guidance document. Basic tips: If the occupation normally requires a Bachelor's and your candidate has a Master's, add a wage level. If your candidate already has 2 years of experience in the occupation, add a wage level. If the job entails even indirect supervision of other workers, add a wage level. Expect a denial where the NPWHC worksheet does not support the wage level offered.
This rule comes in the wake of last year*s policy memorandum of February 22, 2018, PM-602-0157, mandating written end-client contracts and itineraries for any H-1B petitions involving placements at a 3rd-party worksite, and the ensuing implementation by USDOL of a revised Form ETA 9035 Labor Condition Application which now explicitly requires identifying any 3rd-party worksites.
The bottom line? In 2019, US employers and their representatives filing cap-subject H-1B petitions can look forward to adjudications challenging the wage, the professional nature of the job, the location, and underlying contracts for work offered to foreign professionals.