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USCIS Publishes Final Rule changing H-1B Cap Application Process

As we had discussed in an earlier post, USCIS has published a rule seeking to dramatically change how the application process would work for initial, cap-subject H-1Bs. The two main changes involved the method of filing – where a simple online form would be completed by the employer to enter the lottery rather thAn the complete filing required to enter under the old system – and a change in the order of the lottery selection between the 20,00 US Master’s H-1Bs and the general 65,000 category.

The change in what must be submitted to enter the lottery – as we had mentioned in our earlier post – does make a great deal of sense – for years, entire petition packages were prepared at great expense and effort, only to be ignored by USCSI when not selected in the lottery. The new system requiring through a relatively simple online form, with entire petitions to be prepared only if a selection is made, does seem more sensible.

That said, implementation of the new rule will not see a change for this year’s cap process- Fiscal 2020. USCIS acknowledged in the draft rule that they were unlikely to have the technology in place in time for this years’ season, and have confirmed that this year will proceed as in past years – whole packages will need to be submitted.

The change in the order of the lottery selection process will happen this year, however. In theory this provides a slight statistical advantage to Us Master’s candidates. The 20,000 of them who would have been removed from the main selection poll in the past having already been selected for a US Master’s H-1B will stay in the main pool, slightly increasing the chances that the 65,000 primary H-1B allotment visas will go to a US Master’s candidate.

The intention here is to address the purported concern that H-1Bs go the “most-skilled or highest-paid petition beneficiaries” candidates – something expressed in the administration’s “Buy American, Hire American” executive order.
However, there’s no guarantee that someone with a US Master’s degree is more skilled or better paid than someone with a Master’s – or even just a Bachelor’s from some other country. Further, it misrepresents the intention behind the H-1B program, which was simply to find qualified workers for positions where there were no qualified and available US workers. Unlike the O-1 “Extraordinary Ability” visa, the H-1B was never really intended to be for the most skilled or highest paid candidates.

Further, the statistics advantage this provides to US Master’s candidates may go away if more employers, in considering this change, decide to apply for more US Master’s candidates than they otherwise would.