Proposed changes to H-1B program

U.S. Citizenship and Immigration Services (USCIS) recently issued a new proposed regulation to change the way it selects which H-1B cap-subject petitions it will accept in years when there are more petitions filed than visas available.  In particular, instead of requiring employers seeking cap-subject H-1B petitions to file a full petition packet with supporting documents in order to have their petitions considered in the H-1B lottery, USCIS would now require employers only to register online for each cap-subject H-1B petition they wish to file.  If one or more of their petitions are selected in the lottery, they would be notified and asked to file a petition with supporting documents at that time.  Although this may be a welcome change in that it would save employers the expense and hassle of preparing a full petition packet under a tight deadline, the proposed rule includes another, less positive change.  It would require USCIS to select the 65,000 petitions for the regular cap first before selecting the additional 20,000 for the U.S. master’s cap (the additional H-1B visas available to beneficiaries who have a master’s degree from a U.S. university).  Currently USCIS selects petitions under the master’s cap first and then considers all remaining petitions not selected in or not eligible for the master’s cap in the regular lottery.  This change would likely make it harder for H-1B beneficiaries without a U.S. master’s degree to be selected in the H-1B lottery as they would now be competing for petitions with a larger number of beneficiaries who hold U.S. master’s degrees.  Indeed ensuring that a larger percentage of cap-subject H-1B petitions go to beneficiaries with U.S. master’s degrees is the express purpose of this change.

Public comments on this proposed rule are due in early January.

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