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Changes to the H-1B Visa Program Increase Chances for Companies to Petition Foreign Workers with Graduate Degrees Beginning Next Year

Now that the window to submit petitions for H-1B workers for fiscal year 2020 has officially closed, employers that filed petitions are nervously awaiting to see if their petitions survived the cap and were selected for processing. This year saw a record 201,011 petitions filed for H-1B workers.  With only 85,000 H-1B visas available, the majority of employers will be receiving bad news and be forced to hope for better luck next year. However, employers should be aware that the Department of Homeland Security (DHS) announced a final rule that will go into effect next year that will change the H-1B visa lottery selection process.

As brief background, the H-1B visa program allows employers to temporarily employ workers in specialty occupations, meaning jobs that require a bachelor’s degree (or equivalent) or higher. The number of H-1B visas available each year are divided into two categories and subject to two respective caps:

  • The “Regular Cap” sets 65,000 as the maximum number of H-1B visas that can be issued per fiscal year for any petition that does not fall under the Advanced Degree Exception.
  • The Advanced Degree Exception (or “Advanced Degree Cap”) allows for an additional 20,000 visas to be issued for foreign workers that have master’s degrees or higher from U.S. institutions.

This year and previously, the H-1B lottery system worked by United States Citizen and Immigration Services (USCIS) first picking at random the 20,000 visas subject to the Advanced Degree Cap. Any additional advanced degree petitions that were not chosen were then placed into the figurative pile with all regular petitions. USCIS would then pick 65,000 lucky petitions at random for processing under the Regular Cap.

Starting next year, USCIS will be reversing the order in which it selects the H-1B petitions and the Advanced Degree Exception. USCIS will first pick 65,000 petitions at random from all petitions, including the advanced degree petitions, to satisfy the Regular Cap first. After that, USCIS will then select 20,000 petitions from the advance degree pile to satisfy the Advanced Degree Cap. By reversing the order in which petitions are selected, USCIS estimates that the change will result in a 16% increase for advanced degree petitions.

An additional change for next year is that DHS will now require employers to electronically register with USCIS during a designated registration period. Instead of picking the visa petitions at random for the cap after submission, USCIS will now pick the registrations at random for both the Regular Cap and the Advanced Degree Cap prior to petitions being submitted. Employers whose registrations are selected will then be able to file their H-1B petitions with USCIS. This change should effectively save employers both the time and money of preparing and submitting petitions just to find out that their petitions were not selected for processing.

For additional information on H-1B petitions or any area of Immigration Law, please contact W. Royal Gearhart II at rgearhart@KDDK.com or (812) 423-3183.

About the Author

W. Royal Gearhart

W. Royal Gearhart

Royal Gearhart, an attorney at Kahn, Dees, Donovan & Kahn, in Evansville, Ind., works to find effective solutions to business and individual clients’ legal issues using his unique mix of analytical ability and creativity. Royal practices immigration law, environmental and mineral law, business law, family and private adoption law, estate planning, and litigation. In particular, Royal has extensive knowledge and experience with family-based immigration law and employment-based immigration law, including H-1B visa applications, immigration waivers, and asylum applications, and has had numerous petitions approved by U.S. Citizenship and Immigration Services (USCIS).

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