You may have heard that the Trump Administration has proposed changes to the annual lottery system. Seasoned immigration practitioners do not believe USCIS can roll out the changes in time for this year’s lottery.

We believe it is critical to move forward with preparation of H-1B cap cases now for filing the first week of April 2019. See below for more details on the proposed changes.

Today’s H-1B program does NOT require a showing of shortage of American workers. We are protected against cheap foreign competition by a Labor Condition Application certified by the Dept of Labor. As long as the foreign candidate is paid at least the Prevailing Wage that any American would earn, the foreigner can obtain an H-1B.

On April 1st, USCIS Citizenship & Immigration Services will begin accepting new H-1B visa petitions. The annual quota of 85,000 new H-1B visas includes 20,000 set aside for foreign workers who have completed a Masters degree at a U.S. non-profit university.

E&M Mayock Has Begun H-1B CAP Case Processing

This H-1B season will be identical to the competitiveness of the last few years, when the quota was exhausted by the end of the 5-day filing window: 190,000 petitions were filed in 2018 and 198,000 in 2017. Under current procedures, USCIS conducts a random, luck-based lottery of all applications submitted in the first 5 business days to select the petitions that will be considered for visa petition approval.

The Visa Petition only needs to be filed by Friday, April 5, 2019 in order to obtain an available number under this year’s quota. However, each petition needs to have an approved LCA Labor Condition Application from the DOL Department of Labor before the visa petition can be filed with USCIS.

E&M Mayock has now begun H-1B CAP case processing. Cases will be prepared and LCAs will be filed as soon as all information, documents and fee payments are received.

If you would like to participate in our H-1B filing program, please immediately reply to this email and take the following steps:
1.Identify the names of any possible H-1B candidates that have not yet been provided to E&M.
2.Provide the necessary initial documents to speed the evaluation of H-1B eligibility: I-94, passport, resume, job description, and salary.

USCIS will announce winners of the lottery – based on luck – as soon as those names become available, usually by mid-May.

Finally, if we have learned one thing over the past two years, it is that conditions can change quickly in the current highly charged political environment. The Trump Administration’s immigration policies have created enormous chaos and confusion. We are dedicated to helping you navigate this process, but we are unable to guarantee that there will be no unforeseen changes in either process or procedure.

New Pre-Registration Requirement Proposed – But Not Likely To Be Implemented This Year

On November 30, 2018, the Department of Homeland Security (DHS) announced a “notice of proposed rulemaking,” that would require US employers to electronically pre-register with USCIS before an H-1B petition is filed. However, this 2019 H-1B season will likely have the same luck-based selection lottery as in years prior, requiring filing a full petition before the lottery selection.

Proposed Lottery Pre-Registration Rules Summary

Under the proposed rule, US employers would be required to submit electronic registrations, including information about the employer and the H-1B applicant. US employers may file only one registration per individual applicant. Employers will not be able to substitute beneficiaries. H-1B petitions will only be accepted for the H-1B applicant named in the selected registration.

USCIS indicates that it would first notify employers of selection. Then, the US employer would have 60 days to file an H-1B petition on behalf of the selected visa beneficiary. Selected registrants will proceed with preparing and filing a full petition with USCIS. Unselected registrants will be held in reserve, in case an additional registration period is needed to use all available H-1B numbers for the fiscal year.

E&M Mayock Advises Continuing With H-1B Cap Preparation

Realistically, there is very little time between now and April 1, 2019 (first day of H-1B Cap filings) to finalize and implement the proposed changes.

Nevertheless, based on the timing and uncertainty of the proposed changes, US employers are left to plan for the possibility that the new regulation will be implemented this year, as well as the possibility that it will be delayed to next year.

For employers who are committed to filing an H-1B petition this cap season, we advise continuing with H-1B cap preparation as usual.

Here is our reasoning:

•It is not clear exactly when USCIS will provide clarity on whether or not the new system will be implemented.
•Given the timing and uncertainty surrounding the proposed changes, moving ahead with intended H-1B cap filings helps ensure an employer can timely register and submit H-1B petitions under a new system.
•If the proposed registration system is implemented in time for the 2019 cap season, advance preparation will still be necessary to assess each case’s H-1B eligibility, wage requirements, credentials issues, and other criteria in order to complete preparation of a full-petition within the designated (60 day) filing window.
•Postponing the preparation of a case increases the risk for various unforeseen delays, which can result from case-specific complications, system crashes, errors, or other unforeseen delays in the full-petition preparation process.

If the proposed registration system is implemented, and the employer is not selected in the new lottery system, E&M will refund all unused H-1B petition filing fees and any unused legal fees based on the percentage of work completed.

If you have any questions, please contact us immediately at 415.765.5111 or H1B@emvisa.com.

Thank you! We look forward to working with you to achieve your visa goals.

Jim Mayock
jmayock@emvisa.com 
415-765-5111
www.emvisa.com