Breaking News: Up-Front H-1B Visa Cap Selection Process Proposed

The Department of Homeland Security (“DHS”) released its regulatory agenda in December, and it contains changes that will affect H-1B visas. The two most significant changes are a proposed pre-registration for H-1B visa cap selection process, known as the H-1B lottery, and a revision of the definitions of specialty occupation and employer-employee relationship.

The pre-registration process has been proposed in the past, and ultimately it did not succeed. Remember, these changes are merely proposed at this point until they are officially released in the Federal Register, but is still contingent on the notice and comment period.

The experienced immigration attorney at Columbus, Ohio-based Porter Law Office, LLC has in depth experience with securing immigration benefits including H-1B visa petition filings. If you need assistance with an H-1B visa, contact the business immigration lawyer at Porter Law Office, LLC in Columbus, Ohio today.

Registration Requirement for Petitioners Seeking To File H-1B Visa Cap Petitions on Behalf of Aliens Subject to Numerical Limitations

The DHS rule proposes to establish an electronic registration program for petitions subject to numerical limitations for the H-1B nonimmigrant classification, or H-1B visa cap subject petitions. The reason this is being considered, per DHS, is that the demand for H-1B specialty occupation workers often exceeds the numerical limitation, and it is expensive for both the U.S. government and employer to process petitions that are not selected in the lottery.

Further, DHS states that this rule is to ensure H-1B visa cap numbers are provided to the “best and brightest foreign national beneficiaries.” It is unclear how this will happen. DHS also believes that these changes would help U.S. employers by reducing the cost and time involved in petitioning for H-1B nonimmigrants, through an up-front cap selection process where only those employers who have obtained a cap number would be required to submit the entire Petition for a Nonimmigrant Worker, Form I-129.

The proposal may include a modified selection process, as outlined in section 5(b) of Executive Order 13788, Buy American and Hire American.

Proposed Changes to Definition of “Specialty Occupation”

DHS will also propose to revise the definition of “specialty occupation.” The purpose again is to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program. It is also proposing to revise the definition of employment and employer-employee relationship in an effort to better protect U.S. workers and wages. Finally, DHS will propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.

How to these changes affect my company’s H-1B visa cap filings?

You should remember that these changes still have to undergo the notice and comment period pursuant to the Administrative Procedures Act. But, it would be prudent to consider these changes and plan ahead.

You should identify your H-1B candidates now to have sufficient time for the proposed pre-registration process. The changes to the definitions of specialty occupation and employer-employee relationship are still unknown. Given the administration’s propensity to heighten scrutiny of the H-1B program, any changes to these definitions will not make anything easier for the employer or their attorney.

Immigration Lawyer in Columbus, Ohio

H-1B Visa Cap Representation

Porter Law Office, LLC has experience in securing H-1B visas for a wide variety of organization and individuals. The H-1B visa process is complex. There are strict federal labor laws and immigration rules and regulations. Columbus, Ohio immigration lawyer Matthew R. Porter, Esq. assists employers in complying with the H-1B visa regulations. We can help your organization with H-1B visa petition filings and compliance issues. If your organization is considering sponsoring a foreign national on an H-1B visa, contact Columbus, Ohio immigration lawyer Matthew R. Porter to discuss your H-1B visa options.