The Department of Homeland Security (DHS) is working toward implementing a new rule on H-1B cap registration. The new rule requires that petitioning employers register each prospective H-1B beneficiary, rather than filing an H-1B petition. Implementation is now targeted for the fiscal year (FY) 2021 H-1B season, with a filing period in spring 2020. As a part of that process, a proposed rule on filing fees for H-1B cap registrations has cleared the Office of Management and Budget’s review as of August 12, 2019, and is on the verge of publication.
As background, DHS published a final rule in January 2019 amending the regulations governing H-1B cap-subject petitions, including those that may be eligible for the advanced degree exemption. The final rule reverses the order by which USCIS selects H-1B petitions under the H-1B regular cap and the advanced degree exemption and introduces an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. The rule was effective April 1, 2019, although the electronic registration requirement was suspended for one year.
The DHS regulatory agenda also includes a proposal to revise the definition of “specialty occupation” to “increase focus on obtaining the best and the brightest” foreign nationals via the H-1B program, revise the definition of “employment” and “employer-employee relationship” to “better protect U.S. workers and wages,” and add requirements to “ensure employers pay appropriate wages to H-1B visa holders.”
To further complicate matters, another new final rule defines certain terms critical to public charge determinations, such as “public charge” and “public benefit,” and explains the factors DHS will consider when making a public charge inadmissibility determination. The final rule also addresses USCIS’ authority to issue public charge bonds in the context of applications for adjustment of status. Finally, the rule includes a requirement that those seeking an extension of stay or change of status demonstrate that they have not, since obtaining the nonimmigrant status they seek to extend or change, received public benefits over the designated threshold, as defined in the rule.
Legal challenges to at least some of these new provisions are likely, or have already been filed. For example, DHS cannot change the definition of “specialty occupation” through the regulatory process because it is codified in law. And California, among others, has filed a challenge to the public charge rule. Stay tuned.
Tips for Employers
In the meantime, the Alliance of Business Immigration Lawyers (ABIL) recommends the following ways for employers to maximize their H-1B chances:
- Apply based on a master’s degree from a U.S. nonprofit university as long as all degree requirements were completed before April 1
- Ensure a close match between the course of study and job duties
- Apply concurrently for optional practical training (OPT) or STEM OPT and H-1B
- Apply for “consular notification,” not change of status, to preserve OPT if OPT lasts beyond October 1
- Apply for “change of status” if OPT expires before October 1 to preserve work eligibility under “cap gap” policy, but avoid travel
- Choose O*NET code and wage level carefully
- If more than one field of study could qualify a person for the position, explain task by task how the position requires the education
- Be careful of Level 1 wages. Instead, obtain an acceptable prevailing wage from a legitimate source other than the Department of Labor, offer to pay a higher wage from the outset, or explain why this particular job is both entry level and qualifies as a “specialty occupation”
- Consider other visa options if your employee is not selected in the H-1B lottery
- Check the USCIS website for changes to form, fee, and filing location
- Contact your immigration attorney for advice in specific situations