This report covers a proposed new rule from the U.S. immigration authorities on the way petitions in the H-1B cap lottery are selected.
On November 30, 2018, the U.S. Department of Homeland Security (DHS) announced a new proposed rule seeking to make significant changes to the H-1B visa program.1 The proposed regulation was published for public feedback on December 3, 2018.
Under the new rule, United States Citizenship and Immigration Services (USCIS) proposes to amend the way it selects petitions in the H-1B cap lottery.
USCIS also seeks to implement a new process whereby prospective H-1B employers would register electronically during a designated period and USCIS would then conduct a computer-generated random selection process from this pool of timely filed electronic registrants.2
The new rule has been published in the Federal Register, employers and other members of the public will have 30 days to submit comments. Public comments must be received on or before January 2, 2019.
The H-1B program allows companies in the United States to temporarily employ foreign workers in specialty occupations requiring a bachelors or higher degree, or its equivalent. Annually, USCIS selects at least 65,000 H-1B visas under the H-1B regular cap and reserves another 20,000 visas for those holding advanced degrees from U.S. higher education institutions. When USCIS determines that it has received a sufficient number of H-1B petitions to reach the congressionally-mandated H-1B cap, a computer-generated random selection process, or lottery, is used to select the petitions that are counted towards the H-1B cap.
The proposed online registration is a significant undertaking by USCIS and not certain to be implemented by the upcoming FY 2020 H-1B cap season.
USCIS intends to implement these proposed changes in time for the fiscal year 2020 cap season, which will begin on April 1, 2019. However, it is possible it will postpone the electronic registration requirement to the following H-1B cap cycle if it cannot execute the online system in time. In the event USCIS is able to implement the new H-1B cap program changes for the upcoming FY 2020 cap season, employers should begin identifying individuals requiring an H-1B visa so that they may be timely registered for the H-1B cap lottery.
Employers should expect that USCIS will perform data analysis on the information provided in the online registration tool to uncover patterns of fraud or abuse. Employers could be subject to heightened scrutiny and enforcement actions if USCIS perceives such patterns.
We at KPMG Law LLP in Canada are tracking this matter closely and will keep readers posted of any further developments.
1 See “DHS Proposes Merit-Based Rule for More Effective and Efficient H-1B Visa Program,” on the USCIS site. 2 See “Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens,” published in the Federal Register (online).
* Please note that KPMG LLP (U.S.) does not provide any immigration services. However, KPMG Law LLP in Canada can assist clients with U.S. immigration matters.
The information contained in this newsletter was submitted by the KPMG International member firm in Canada.
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