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What the New DHS H-1B Process Means for Employers

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Last week, the Department of Homeland Security (DHS) posted a final rule in an effort to create a more effective and efficient H-1B visa program. The rule will go in effect April 1 and changes the way in which petitions are selected in the annual H-1B visa lottery. The new rule also paves the way for further changes—namely electronic registration—in the fiscal year (FY) 2021 cap season. Keep reading to learn what exactly these changes are and how they will affect your business. 
Change of Lottery Selection Order
The most immediate change brought by the new rule is restructuring of the order in which the United States Citizenship and Immigration Services (USCIS) selects H-1B visa allocations. Beginning this year, the USCIS will select 65,000 H-1B petitions for all applicants first, followed by the selection of 20,000 petitions from applicants with a U.S. master's degree or higher. 
In the past, the USCIS has selected the 20,000 applicants with a U.S. masters degree or higher before selecting 65,000 H-1B petitions from all applicants. According to a press release from the USCIS, the rule change will result in a 16%—or 5,340 workers—increase in individuals with a master's degree or higher from a U.S. institution having their petition selected.   
Electronic Registration 
While the revised selection process goes into effect this year, the electronic registration process that was proposed along with it—as we detailed in our blawg, A Step Forward for the H-1B Visa Process, Or Is It?—will be delayed until the FY 2021 cap season. The decision to delay the rollout of electronic registration is in response to public feedback—and is embraced by many immigration lawyers, including us—as it allows the USCIS more time to ensure the system and process are fully functioning before going live. 
Once implemented, the electronic registration process will present a large shift in the way H-1B visas are processed. Beginning in FY 2021 cap season, electronic registration will be required of all H-1B cap petitioners, including those eligible for the advanced degree exemption, to electronically register—rather than submitting a complete H-1B petition—with the USCIS during a designated period. 
What These Changes Mean for Employers
Depending on an employer’s hiring strategy, this rule may or may not be beneficial. For employers seeking to hire foreign nationals with advanced degrees from U.S. colleges and universities, the odds of being selected in the H-1B visa lottery has improved. However, there could be unintended consequences to the new rule, such as putting businesses that employ professionals in fields that don’t require a masters degree—for example, architecture, accounting, and public education—at a disadvantage. It could also have an impact on the healthcare sector, which heavily relies on foreign physicians, many of whom completed their medical education overseas. The rule will also lower the odds for some of the most skilled and qualified applicants with foreign advanced degrees—like those from prestigious universities such as Oxford University, Sorbonne University, and the University of Toronto.
The new electronic registration process will make it easier for employers to participate in the H-1B lottery and USCIS believes it will make the H-1B cap process more cost-effective for petitioners and more efficient for the USCIS. But, will this be the result? 
On the surface, only needing to simply register for the H-1B lottery, rather than submit a completed petition, would seem like a positive for employers. However, in many ways, this could end up costing employers additional time. The most notable potential problem is that the registration system could become inundated with non-meritorious applications. 
Why GoffWilson 
GoffWilson solely practices immigration law and has successfully assisted thousands of employers and employees with their H-1B petitions. If you have a question about the H-1B visa, how to put your petition together with the best chance for success, and how the new rule will affect your business, contact GoffWilson today. Put our thirty-plus years of experience and success with immigration and deep knowledge of the H-1B visa to work for you. Immigration—it’s ALL we do!

Filed under:H-1B Visa, Immigration Law