New H1B Pre-Registration Rule Announced!

Today the USCIS finally announced a much anticipated rule regarding next year's H1B visa (specialty occupation worker) application process.  At the moment, a computer-aided lottery is required to simply choose which applications may go forward for simple consideration.  This is because the law requires an annual cap on new H1B visas to be issued every year, about 65,000.  Recently, American companies have submitted about 3 to 4 times that number for their potential foreign employees, resulting in some sort of system to pick which applications to even consider.  

H1B applications are complicated, requiring multiple steps to even assemble an application to submit to the government.  Also, the fees are quite high, several thousand dollars for small companies and even more for the larger ones.  For a basic run down on the H1B visa, read my previous run down: H1B Visas Explained.

This is an immigration application.

So then why go through all the rigamarole to interview an employee in January or February, offer them a job that cannot start until the following October, get a Prevailing Wage Determination, file a Labor Condition Application, fill out the forms, pile on documentation for both the company AND proposed employee, finance the attorney and application fees, and overnight a 3-inch packet to the USCIS by the April 1 deadline, ALL to simply have the application returned because it wasn't chosen in the lottery????

Not this!

Well this is what the new proposed rule seeks to address.  By setting up a "pre-registration" process, those companies interested in petitioning for a new employee can simply register some basic information online, and find out whether the application has been chosen in the lottery without going through the aforementioned anxiety.  In addition, today's announcement includes a less-anticipated twist in the order that Master's degree employees are chosen.  Here is the Proposed H1B Application Pre-Registration Rule.  

By the way, this idea has been bandied about since 2011.  But back then, there was no overflow of applications and the annual total was usually well-under the cap.  Likely the government wasn't pressured to act as a lottery process was a low priority.

As explained by the USCIS, the stated purpose is cost reduction to U.S. businesses, as well as to USCIS service centers. The potential cost savings stem from avoiding the actual filing of more H1B petitions than can be accepted under the annual quota.  The hope is also to reduce employer costs for preparing and filing H1B petitions that are not selected for annual caps.  The USCIS in theory would save money in the process of rejecting excess cases and processing large applications into a lottery to determine which cases to accept after filing.  

These are laudable goals.  Indeed, if an H1B petition is rejected, the fee checks are returned uncashed.  But an attorney has already done the work, and those fees cannot be recouped.  And as I said above, it's a TON of work just to assist the attorney in preparation a proper H1B petition.  There are a LOT of pieces to put together, when done right.

The Proposed Preregistration Rule Itself was just unveiled today, and won't be final for a couple months.  Anyone may comment on the rule within the next 30 days.  However, I'm not sure how such a system will be implemented this coming H1B season.  Perhaps that is the intent, but I won't be surprised if the Rule is solidified early 2019, but the actual system implemented in 2020.  Time of course will tell.

Here's the main problem:  The rule makes it easier to apply for an H1B visa but requiring less skin in the game.  But "skin in the game" is also what separates the legit from the IL-legit.  For example, last year the government announced it would not allow "premium processing" for new H1B petitions. Premium processing allowed applicants to pay an extra fee to get their decision--approval or denial--faster.  Well, some companies started gaming this tool to see which employees they could get approved over others, to put it very simply.  It felt like fraud, but wasn't.  Yet, when premium processing was suspended, lo and behold, the number of applications dropped dramatically.  I am convinced it allowed more legitimate (less game playing) applications to be considered including those of my own clients.  So one big question is, will a simple pre-registration process simply open the floodgates of anyone and their brother to see if they can get chosen in the lottery without any consideration of whether the petition will be approved?  This would have the affect of leaving many legitimate petitions unconsidered.  And the simpler the pre-registration, the wider the floodgates, the more tainted the pool of legitimate H1B applications considered.

Will the visa stamps be replaced with badges?

To clarify, the rule was just released and I haven't read the fine-point.  I also don't know how I feel about the Masters degree switch under the guise of "merit-based" immigration.  We already have merit-based immigration and it should be less complicated, not more.

In any case, the games will not begin for the upcoming H1B visa season, and interested parties should keep their ear to the ground with   valid sources of information to decides their next moves.