On January 31st, DHS published a final rule requiring H-1B employers to register online prior to submission of an H-1B filing, but thankfully this will not come into effect until April 2020, as we’re already well into H-1B season and trying to implement by April 1st of this year was a scary prospect. 

The change will require H-1B applicants to pre-register relatively basic information 14 days in advance of the quota becoming available on 4/1; and if the quota is exceeded, USCIS will conduct a random selection process (lottery) and inform successful applicants who then have 60 days to file a full petition.

The proposal seeks to streamline the H-1B petition process by requiring a full petition to be submitted only after a case is selected in the H-1B cap lottery, thus eliminating the expense associated with preparing and filing H-1B petitions which may ultimately be rejected in the H-1B lottery. Employers will be given 60 days to file petitions that ‘win’ the lottery.  This seems eminently sensible and should have been in place a lot sooner (in fact the proposal goes back to 2011 but obviously did not come to fruition at that time). A reserve system will make unused slots available to applicants who were not successful in the pre-registration round.

Overall, the new system will be welcomed by all stakeholders.

This year sees a change in the selection and counting process which will favor master’s degree holders, effectively increasing the master’s quota by an estimated 16%, and the bachelor’s quota will be proportionately reduced.

Another significant change for H-1B’s which will be filed on April 1st is a new Labor Condition Application (LCA) put into effect by the DOL on 11/9/18.  New questions are restrictive and targeted in particular at employers of tech workers, for the first time requiring disclosure of details of third party work placements, including end-party or vendor names and work site addresses. This recent Government pressure on H-1B employers, combined with last year’s increase in H-1B denials and requests for further evidence (not to mention bad press) is bound to have a cooling effect on U.S. employers sponsoring foreign workers for H-1B visas. In April 2018, the number of H-1B petitions received by USCIS was down on April 2017 by over 8,000; and April 2017 was down significantly on April 2016, by 37,000. It will be interesting to see what happens in April 2019.

We will keep you posted!

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