Employers are encouraged to continue preparing for H-1B cap season as they normally would, even though U.S. Citizenship and Immigration Services proposed a regulation earlier this month that would significantly change the H-1B cap lottery process.

The proposed regulation calls for USCIS to (1) make changes to the lottery process that would increase the odds that advanced-degree holders will be selected, and (2) introduce a new mandatory online registration system for employers who sponsor H-1B candidates. While USCIS is working to implement the regulation in time for the upcoming H-1B cap season, it is not yet clear whether the agency will meet this timeline. In the meantime, employers are encouraged to take the steps they normally would under the lottery procedures currently in place ahead of April 1, 2019, the first day of filing.

Here are some steps employers can take now:

  • Identify H-1B cap candidates. Employers should assess their workforce needs and identify H-1B candidates who will be subject to the cap. The H-1B cap applies to foreign workers who are seeking new H-1B status, such as newly graduating foreign students in the U.S. or overseas workers who are seeking to start work in the U.S. in H-1B status. The cap does not affect individuals who were counted against the cap during the previous six years, those seeking to extend their H-1B status or change employers, or workers who will be sponsored by cap-exempt entities.
  • Finalize job offers. Employers should work with their recruiters to finalize job offers for potential H-1B employees planning to start work Oct. 1, 2019. Special attention should be given to individuals in the U.S. whose current visa status is due to expire. These may include students in F-1/Optional Practical Training (OPT) status, intracompany transferees on L-1B visas, Australian nationals on E-3 visas, and Canadian and Mexican NAFTA professionals on TN visas.
  • Complete job descriptions early. Employers should send descriptions of the prospective H-1B employee’s position, including job duties and the position’s minimum qualifications, to their BAL attorney as soon as they are complete. Job descriptions are required for the Labor Condition Application for Nonimmigrant Workers (LCA), a prerequisite to the filing of the H-1B petition in which an employer promises to pay at least the prevailing wage for the occupation. While the Labor Department normally takes seven days to certify an LCA, it may take longer depending on the offered salary, prevailing wage and specifics of each case.
  • Avoid last-minute document gathering. Employers and individuals should not leave document collection and preparation to the last minute. In particular, foreign academic transcripts, certificates and other educational documents are among the most time-consuming to prepare because official versions must be obtained, translated and evaluated to show that the candidate has earned the equivalent of at least a U.S. bachelor’s degree. In addition, prospective H-1B candidates who do not have a formal degree must gather and provide evidence of sufficient years of experience so that an official educational equivalency document may be prepared.
  • Explore alternatives. Companies are encouraged to explore potential alternatives to the H-1B category with their BAL attorney early in the season to allow enough time to pursue other avenues, such as other visa categories, for workers who do not obtain an H-1B visa. After the close of this cap season, employers must wait until April 2020 to file H-1B cap petitions again.

BAL Analysis: Demand for H-1B visas is expected to be high again this year, and will likely easily eclipse the annual limits of 65,000 cap-subject visas for undergraduate-degree holders and an additional 20,000 for those holding advanced degrees from U.S. educational institutions. Employers and individuals can maximize their chances of filing within the first week of April by planning early. BAL will continue to follow the implementation of the proposed regulation and will alert clients if they need to do anything differently in their H-1B planning this year. An FAQ on the proposed changes to the lottery is available here. Members of the public may submit comments to the government regarding the proposed rule until midnight Wednesday, Jan. 2.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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