Trump Administration Proposes Changes to H-1B Lottery

January 3, 2019 | Henry M. Mascia | Employment & Labor

The public comment period for the Department of Homeland Security’s (DHS) proposed changes to the H-1B lottery system has now closed.  U.S. companies filing H-1B visa petitions must typically enter a lottery because the law caps the number of H-1B visas that DHS can issue each year.

The proposed rule would make two important changes to the lottery system:

1)      The new rule would require U.S. companies seeking H-1B visa cap-subject petitions to first electronically register with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period. Only registrants selected in the lottery would be permitted to file a complete H-1B visa petition.

2)      USCIS would also reverse the order by which it selects H-1B petitions under the H-1B cap and the advanced degree exemption.

The proposed registration system, with its reduced cost and work to enter the lottery, will almost certainly increase the number of lottery participants. This, in turn, is expected to decrease the chances of any one entrant being selected.

Currently, the advanced degree exemption is selected before the H-1B cap. Under the proposed rule, all petitions would be counted toward the cap. The proposed change will likely increase the number if foreign nationals selected in the lottery with an advanced degree from a U.S. college or university.

The change will also likely decrease the number of entry-level employees receiving H-1B visas, closing the path many foreign nationals take to become U.S. citizens. Many foreign nationals enter the U.S. on an F-1 student visa, change to H-1B status when they receive an entry-level position, receive lawful permanent residence if their employer sponsors them, and finally apply for naturalization. The entire process takes many years, even decades in many cases. Reducing the number of entry-level H-1B visas will, for some foreign nationals, make citizenship unattainable.

DHS has indicated that it may implement this system as early as April 2019, but may delay it until April 2020.

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