H-1B Lottery- What is it?

H-1B Program

H-1B is a temporary non-immigrant work visa issued to foreign nationals by the U.S. government. H-1B visais considered for speciality occupations that require theoretical and practical knowledge in specialized fields such as in IT, finance, accounting, architecture, engineering, mathematics, science, medicine, etc.and at least abachelor’s degree or higher in the specific speciality or its equivalent.

H-1B visas are subject to an annual visa cap consisting of 65,000 H-1B visa regular cap and 20,000 for U.S. advanced degree exemption, known as the master’s cap for each fiscal year. Of the 65,000 under the H-1B regular cap only 6,800 visas are set aside for Chile and Singapore nationals in every fiscal year under the free trade agreement between U.S.-Chile and U.S.- Singapore. Visas unused from this quota become available for H-1Bs for the next fiscal year.

Every fiscal year is from October 1st to September 30th. U.S. employers can begin applying for the H-1B visa six months before the employment start date requested for the applicant.

What is the H-1B Lottery?

The H-1B lottery is conducted via acomputer-generated random selection process once the cap quota is surpassedto select H-1B petitionsof regular cap and the U.S. advanced degree exemption for the fiscal year.

Once the USCIS selects 20,000 petitions from the advanced degree exemption, then all the other advanced degree exemption petitions are counted under the regular cap and, once the 65,000 regular cap is reached, the U.S. Citizenship and Immigration Services (USCIS) announces that cap has been filled and rejects further petitions.

H-1B employees working in the Commonwealth of the Northern Mariana Island (CNMI) and Guam are exempted from the H-1B cap if their employer files their petition before Dec31, 2029.

In FY 2020, the Department of Homeland Security (DHS) announced a final rule amending regulations governing cap-subject H-1B petitions, including those that may be eligible for the advanced degree exemption. This final rule reversed the order by which the USCIS selected H-1B petitions under the H-1B regular cap and the advanced degree exemption, which was put into effect for the FY 2020 cap season. 

Upcoming Changes to the H-1B Cap

The USCIS has recently announced the successful implementation of theH-1B Electronic Registration Process for the Fiscal Year 2021 H-1B lottery. The electronic registration process will make the process more efficient by reducing paperwork and information exchange and will also render overall cost savings to petitioning employers. As per the new process, employers will initially complete a registration process which will require them to provide only basic information about their company and each potential H-1B worker. The USCIS will open an initial registration period from March 1 through March 20, 2020. Subsequently, only selected cases will be eligible to submit their petitions under the H-1B cap.

Previously, petitioning companies were required to submitcomplete H-1B cap petitionsto the USCIS, and the USCIS would then select eligible petitions through a random selection process. This process resulted in voluminous paperworkwhich in turnincurred heavy mailing cost to petitioners and other agencies/firms filing petitions on behalf of the petitioning companies.

Under the new process,employers who are seeking to file H-1B petitions for their employees will have to first electronically register and pay the $10 H-1B registration fee per employee.This process isalso made applicableto those who are eligible for advanced degree exemption.

The USCIS will update the registrants with step-by-step instructions on how to complete the registration process on the website along with dates and timelines as the registration period nears.The USCIS will also conduct public engagements and other outreach activities for registrants and interested parties to ensurethe registrants are fully aware of the new registration process system.

The upcomingchanges to the cap season is causing a lot of anxiety amongst petitioning companies and law firms and further updates are awaited to see how the FY 2021 lottery will pan out.

Rajesh Khandekar

H-1B RFEs – Understanding Key Issues

An RFE (Request for Evidence) has long been viewed as an unwelcome, and often times, onerous step as it adds uncertainty to, and prolongs, the visa application process.  In the past 2 years, employers have been seeing an increasing number of RFEs issued by the USCIS (United States Citizenship and Immigration Services) in H-1B cases, particularly the H-1B cap cases. Between January 1 and Aug. 31, 2017, the USCIS issued 85,000 RFEs, to H-1B visa petitions – a 45 percent increase over the same period last year. In contrast, total number of H-1B petitions rose by less than 3 percent in the same period.[1].  Many say this trend is largely as a result of Trump’s 2017 Executive Order, ‘Buy American, Hire American’ which directs government agencies to devise policies that focus to“…help ensure that H-1B visas are awarded to the most–skilled or highest-paid petition beneficiaries.”  

An RFE can be quite a task, but often times, can be successfully overcome with strong documentation and compelling arguments.  This article addresses the common RFE reasons that are being put forth by the USCIS.  By preempting these reasons at the get go, employers can potentially avoid uncertainties and delays in the application process.

  • Specialty Occupation

The most common RFE issue relates to whether a job qualifies as a ‘specialty occupation,’ particularly with an entry-level wage.  The H-1B visa is reserved for foreign workers who render services in a specialty occupation; this is proved by showing: (i) a bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position; (ii) the degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree; (iii) the employer normally requires a degree or its equivalent for the position; or (iv) the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with attainment of a bachelor’s or higher degree.

8 CFR 214.2(h)(4)(iii)(A).

Each of the above criteria offer challenges due to their subjective nature in determining what constitutes a specialty occupation.   USCIS looks for a strong connection between the degree program and the specific job duties associated with the proffered position.  Due to the increasing narrow interpretation of “specialty occupation” by USCIS, H-1B petitions requiring a more general degree are often denied.  USCIS may now question an electronic engineering degree for an IT job or an MBA degree could be viewed as too broad for a marketing or sales job position.  Some proffered positions are scrutinized more than others as USCIS relies on their premier source of career guidance –  the Occupational Outlook Handbook (OOH) (published by the Department of Labor) – to determine which job positions require a bachelor’s degree.  ‍

Criteria for certain roles like computer programmers are becoming more stringent; the 2017 USCIS memo clarifies that entry-level computer programmer positions are no longer automatically considered to be an H-1B  specialty occupation.  USCIS notes that as some computer programmer positions only require an associate’s degree, employers now have to demonstrate that H-1B foreign applicant’s role is sufficiently complex to require a bachelor’s degree. 

  •  Level 1 Wage

Additionally, in determining specialty occupation, USCIS takes a look at the wage level too to see if the job offered truly requires the H-1B worker to have a bachelor’s degree.  Specifically, entry-level positions that require a university degree, but no experience are typically classified under level 1 wage.  Level 1 (entry) wage is typically assigned to positions that require a basic understanding of the occupation; such an employee performs routine tasks that require limited, if any, exercise of judgement.

The Level 1 Wage RFE calls into question whether the LCA appropriately supports the H-1B petition. These RFEs imply that although the position may be specialized, the Level 1 Wage used to support the LCA was inappropriate, and that the LCA should have been supported by a prevailing wage determination above Level 1.

Employers must show that entry level duties that draw on skills acquired from specialized bachelor’s program would qualify as a ‘specialty occupation.’ An employer may also demonstrate that certain tasks can be complex and specialized even in an entry-level occupation.

  •  Third – Party Worksite

Third party work, where H-1B employees are posted at third party or end-client locations to work on specific project, as opposed to being employed in-house at the employer’s office, have come under greater scrutiny.  In the recent past, USCIS has been asking employers to provide detailed documentation seeking specific itineraries and schedules of workers’ stay in the United States along with the nature of client projects and engagements.

  • Employer – Employee Relationship

The employer-employee relationship has become more so important in the H-1B third-party worksite context.  In such cases, where the H-1B employee is posted at the end-client site, USCIS requires evidence to show that the foreign worker will be managed and controlled by the H-1B sponsoring employer, and that the third – party client shall have no authority and/or control over the employment terms of such worker (hire, termination, salary, insurance, etc.) Employers must submit agreements or MSAs (with the SOWs, PO, end-client letters, etc.) that expressly mention the petitioning employer’s obligations toward the employee and their right to control the employee.

Zeenat Phophalia, Esq., Senior Attorney

Keywords: H-1B, Scrutiny, USCIS, RFE, Specialty Occupation

[1] https://www.reuters.com/article/us-usa-immigration-employment-insight/trump-administration-red-tape-tangles-up-visas-for-skilled-foreigners-data-shows-idUSKCN1BV0G8

USCIS finalizes changes to H-1B Lottery

DHS has announced a final rule for a more effective and efficient H-1B visa program. The final rule (1) adds a pre-registration process to the H-1B lottery, and (2) reverses the order in which the H-1B lottery is run to maximize the number of visas awarded to applicants with advanced degrees from U.S. colleges and universities. 

Importantly, USCIS will only implement the reversed selection process for the Fiscal Year (FY) 2020 H-1B cap filing season (April 2019). In order to make sure the registration system has been properly tested, the final rule’s pre-registration requirement is being suspended until at least the (FY) 2021 H-1B cap filing season (April 2020). Employers will therefore need to plan on preparing full H-1B petitions for the upcoming (FY) 2020 H-1B cap filing season, as done in the past years. 

Reversing the order of the H-1B lottery 

H-1B visas are capped at 85,000 per year, which include 20,000 for applicants with a U.S. Master’s Degree or higher. Under the current system, applicants with a U.S. Master’s Degree or higher are first run through a 20,000 “Master’s Cap” sub-lottery. Then, the unselected applications are put into the main 65,000-visa lottery pool. 

The final rule would flip the order, put the higher-educated workers into the main 65,000-visa lottery pool first, and any left-over petitions would go into the 20,000 “Master’s Cap” lottery. This would increase the chances for applicants with a U.S. master’s or higher degree of being selected for USCIS adjudication. 

Amit Solanki, Immigration Executive 

Keywords: H-1B cap, USCIS, Lottery, DHS

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