H-1B Program Changes

Understand this Year’s H-1B Program Changes

Understand this Year’s H-1B Program Changes

Each year, thousands of foreign professionals receive the opportunity to travel to America and work for U.S. companies. Likewise, U.S. companies can utilize the unique benefits of skillsets rarely found in the American workforce. The H-1B program allows for this symbiotic relationship to flourish, boosting the U.S. economy across myriad sectors and as a whole, as well as benefiting individuals and employers alike. Obviously, the H-1B program is a great benefit to the United States (U.S.).

This year, the Trump administration will make some modifications to the H-1B program. We discussed the initial announcement of potential changes in December 2018, when the possible updates were posted for public comment (read the article here). Now, the USCIS is ready to implement planned changes.

At Davis & Associates, we want you to feel confident and prepared for this H-1B application season. If you have any additional questions after reading this article, please do not hesitate to contact us. We offer free initial consultations and can discuss the basics of your H-1B application with you. Our lawyers will make your application process easy, whether you’re an employer hoping to sponsor a foreign worker or an international professional seeking new opportunities.

General Overview: The H-1B Program

Created in 1990, the H-1B program has benefited countless immigrants and boosts the economy with each new professional it attracts to American soil. The H-1B visa is a “nonimmigrant” visa, which means it is temporary. H-1B visas remain valid for three years at a time, and beneficiaries can apply to extend once (for a total stay of six years). After expiration of their H-1B visa, a beneficiary can potentially petition with their employer for a green card. Otherwise, they will need to return to their home country.

Only employers in “specialty occupations” may petition to hire H-1B professionals. Often, these employers are in tech or STEM fields, which include science, technology, engineering, and math. STEM organizations rely heavily on the H-1B program to make their teams diverse and competitive thought leaders. In fact, STEM fields dominate the H-1B program by a great margin – nearly two-thirds of all applications are sponsored by a STEM company.

The U.S. places annual limits, known as “caps,” on H-1B visas. The government only makes so many visas available, and the competition can be fierce. Each H-1B season begins on April 1, when the USCIS begins accepting applications on a first-come, first-served basis. But, the H-1B program has become so popular recently that the USCIS receives more applications than available visas. If this occurs within five business days of availability, the H-1B lottery triggers and chooses applicants via computerized randomization.

In recent years, the H-1B program has proven to be exceedingly popular. In fact, within the last 12 application seasons (FY 2008-FY 2019), the lottery system has been triggered 8 times!  Since the annual cap is only 65,000 visas (plus 20,000 specialized visas), it is no surprise that there are more applicants than spaces.

Types of H-1B Applicants

There are two distinct tiers of H-1B applicants. First and foremost, any professional being considered for an H-1B visa must meet stringent requirements. They must be educated, trained, and in a specialty field. The standard H-1B applicant is a foreign professional with advanced education – either from an American institution (Bachelor’s only) or a foreign university.

The H-1B system also considers “Cap Exemption” applicants. The previous system already favored these highly-educated applicants, but the upcoming changes make it even more favorable for these professionals. Cap Exemption applicants have advanced degrees (Master’s or above) from a U.S. university or institution. The H-1B program allocates an additional 20,000 visas for these applicants. While cap exemption candidates are still chosen via randomized lottery, they are more likely to be chosen, considering extra visas are made available for them.

“Buy American Hire American”

In April 2017, President Trump issued the “Buy American, Hire American” executive order. This order, among many things, demanded an altered H-1B program that highly favored those candidates who were the “most-skilled” and the “highest-paid,” (i.e. the cap exemption applicants). It is this executive order that directed leaders at the Department of Homeland Security (DHS) and the U.S. Citizenship and Immigration Services (USCIS) to brainstorm, announce, and implement key adjustments to the program.

November 2018 Announcement

In late November 2018, DHS & the USCIS posted announcements that described potential impending changes to the H-1B program and its functioning. The changes were described in full in our December 2018 article, and were placed on the Federal Register for roughly one month. When on the Federal Register, the potential H-1B updates were available for public comment. Some, including The San Francisco Chronicle, commented that the shorter-than-usual timespan for public comment suggested the Trump administration hoped to implement changes in 2019.

What to Expect in April 2019

April 2019 is fast approaching. With it comes the Fiscal Year (FY) 2020 H-1B application season. On April 1, the USCIS will again begin accepting H-1B applications and petitions. Experts expect the process, as it has in recent years, to default to a lottery choice system.

While some changes will not occur for this application year, we include every change you can expect below. You can also read more about the changes in detail on the Federal Register. The important detail to note is that there are no changes to the application process for FY 2020. Though, such changes will happen in the future, likely for FY 2021.

Lottery System Changes

Previously, when the lottery system triggered, the USCIS would choose all cap exemption candidates first. After allocating all 20,000 cap exemption visas, any remaining applicants would move to the standard lottery for additional consideration. When conducting the standard lottery, the USCIS considered all remaining cap exemption applicants and all other applicants.

Now, the choosing order will flip. First, the USCIS will hold its standard lottery, allotting 65,000 visas to a larger pool of applicants. The pool is larger because now it has all standard applicants and all cap exemption applicants. This means there will be roughly 20,000 additional candidates in the lottery than in previous years. After rewarding all standard visas, the USCIS will conduct the cap exemption lottery for any applicable candidates who did not receive visas during the first lottery.

What does this mean? Ultimately, the process became harder for those foreign professionals who do not qualify as “cap exemption” candidates. On the other hand, cap exemption professionals will now be more likely to receive a visa. As written in Trump’s April 2017 executive order, this was the express goal of the Trump administration – to arrange a system that favored those applicants who were “more skilled” and “higher paid.”

New Electronic System

One way that the H-1B application process will radically change is with the implementation of a new electronic registration and application system. The USCIS announced this new system in November 2018. But, due to public concern during the comment period, the USCIS will not implement this change until it fully vets the system. According to the USCIS, system will face numerous tests and updates before any implementation will occur. This will ensure a seamless transition – or at least a relatively simple one.

This is a good idea – chaos would surely ensue if the USCIS uploaded a poorly tested and glitchy system during one of the most popular visa application seasons. It would affect every aspect of the application process and cause confusion and disarray. Luckily, public commenters, especially employers, worried about this and asked for delay and testing.

Once the system is ready, the USCIS will issue an announcement. At that time, the department will also issue instructions and information about the new system. The USCIS will conduct further outreach with these materials to ensure that users understand how to utilize the system.

About the System

Currently, companies complete paper applications in full for every candidate they hope to sponsor. They then send their petitions via mail to the USCIS during the application window. Remember, this process will remain the same for the FY 2020 application season beginning this April.

Unfortunately, because of the popularity of the H-1B program, companies often waste time and resources petitioning for candidates who ultimately do not receive visas. Thus, a new electronic registration system offers several solutions. First, companies do not need to fill out complete petitions for every candidate. They will simply register their applicants online during the application period. Then, if a candidate receives a visa (likely via lottery), they will then complete full applications.

This saves time, paper, and money. It will make the process less stressful for employers and beneficiaries alike. As long as the system is efficient, easy-to-use, and user friendly, this could truly improve the program, making it more accessible.

Work with an Expert Dallas Immigration Attorney

If you are unsure about any aspect of your H-1B application, the best ally is an experienced immigration attorney. They will be able to explain each aspect of the application, as well as discuss what to expect after the paperwork is submitted. The H-1B program is popular, so your lawyer can discuss options and expectations for both sponsors and beneficiaries.

Further, your immigration lawyer can ensure that all paperwork is accurate and completed on time. Any issue or error could lead to delay, denial, and ultimately heartbreak. Remember, avoid working with any “notarios” or “visa consultants.” While they may offer help with your application for a cheaper cost, they are not legally certified to provide guidance or legal representation. Your best ally is an experienced, compassionate, and skilled immigration attorney.

At Davis & Associates, we strive to provide top-tier services to every client that walks through our doors. Our commitment to excellence shows in our results, and we are confident that your experience with us will meet your expectations. While no specific outcome is guaranteed, especially with H-1B applications, we can ensure that your application is error-free, timely, and prepped for success.

Have questions? We offer free initial consultations. You can sit down with one of our expert attorneys and discuss your application. We’ll review your case, answer your questions, and you’ll leave with an action plan. Contact us today!