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H1B Upcoming Changes

Earlier this month, DHS and DOL, both of which have released their fall 2018 regulatory agendas. Among other regulations, there are a few key notes regarding H1B changes. In the agenda, USCIS has sent a draft regulation to the OMB for review, looking to possibly change the petitioning process for H1B Cap filings. While the draft itself is confidential, it could likely be based off of USCIS’s 2011 proposal. The forecast changes are outlined as follows.

1. Pre-registration: USCIS will require employers to submit a brief form with information about the company, offer, and beneficiary. This pre-registration form will be submitted during a special period prior to April 1st, the original opening date for filing. Employers will need to pre-register for each individual foreign employee, no more than once per employee. Employees with multiple offers from different employers will have multiple registrations (one per potential employer).

2. Lottery: USCIS might be using the pre-registration pool for the lottery, which it is anticipated to keep, choosing pre-registrations to fill the quota. There may be changes to how cases are selected, given the difference between full petitions and the much briefer registrations in this proposed system.

3. Filing period: Once registrations have been selected in the lottery, employers will have a precise period in which to submit their cap petitions. The time frame might be short, raising concerns that employers may not have enough time to prepare and file a full petition in time. To ensure a successful filing, we recommend employers begin petition preparations ahead of the lottery selection.

4. Waiting list: USCIS may implement a wait list to account for a gap in the quota in the case of rejections, withdrawals, or incomplete filings.

Aside from changes to the filing procedures, USCIS has also filed a proposal to revise the definition of “specialty occupations”, “employers”, and “employee-employer relationship” to protect U.S. workers and wages, indicating the changes will be restrictive. Included in the proposal are additional requirements regarding increased wages for H-1B workers.

Sources:

https://news.bloomberglaw.com/daily-labor-report/skilled-visa-process-could-look-a-lot-different-next-year

https://www.whitehouse.gov/presidential-actions/presidential-executive-order-buy-american-hire-american/

https://www.gpo.gov/fdsys/pkg/FR-2011-03-03/pdf/2011-4731.pdf

https://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST&currentPub=true&agencyCode=&showStage=active&agencyCd=1600

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