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!

OBA Law Office Limited t/a O'Brien And Associates • Registered in Ireland: 541466 • Registered Office: As Above

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