We start gearing up in December with clients for the annual H-1B lottery in April. With U.S. Citizenship and Immigration Services (USCIS) issuing more Requests for Evidence (RFEs), it’s now more important than ever to get started with preparing an H-1B petition.

The Alcorn Immigration Law team continues to win H-1B visas for our clients despite additional RFEs. We continue to maintain our more than 95 percent success rate.

Here are some of the latest developments that employers and sponsored professionals should keep in mind as the next H-1B lottery approaches.

 

Changes to Labor Certification

When filing an H-1B petition, employers must submit a Form ETA 9035 (Labor Condition Application) for certification by the U.S. Department of Labor (DOL). A Labor Condition Application (LCA) requires a U.S. employer to prove to the DOL that no qualified U.S. workers are available for the position sought by the foreign employee. The certification aims to protect the employment, wages and working conditions of U.S. workers employed in the same field.

DOL recently implemented a new LCA form that requires a host of additional information. Among the changes:

• The form now requires employers to name any companies where the H-1B candidate may work on a contract basis. This could impact outsourcing and staffing firms that apply for many H-1B visas. Given the controversy surrounding outsourcing companies that rely heavily on foreign workers, third-party employers may be reluctant to use these firms if that information could become public.
• Up to 10 work locations can now be listed, compared to just three previously.
• Employers must now provide a wage range for the H-1B candidate.

All of these changes will likely extend preparation as well as processing times for LCAs.

 

Lottery Pre-Registration

USCIS recently published a proposed rule in the Federal Register that would change the H-1B lottery process. In an interview with Bloomberg Law, USCIS Director L. Francis Cissna said the changes will likely be in place when the next H-1B lottery opens on April 1, 2019.

However, given the uncertainty of whether that will be the case—or if the changed will be delayed until the following year—employers are planning for both scenarios. That means employers face investing more time as well as increased costs for filing H-1B petitions.

The proposed rule would allow employers to electronically pre-register for the lottery. Currently, employers must submit a complete H-1B petition when the lottery process opens. Under the new proposal, only those pre-registered employers selected in the lottery would submit a complete H-1B petition within 60 days of selection.

 

Change to Lottery Process

Another change outlined in the proposed rule gives a leg up to workers with advanced degrees from U.S. colleges and universities. Currently, Congress caps the number of H-1B visas issued each year at 85,000. USCIS first randomly selects 20,000 petitions for specialty workers with a master’s or higher degree from an accredited U.S. institution. The master’s petitions not selected get a second chance: USCIS enters them into the lottery for the remaining 65,000 H-1Bs.

The proposed change would flip that process: USCIS would conduct the lottery among all 65,000 H-1B candidates first. Then USCIS would select 20,000 petitions from among the remaining petitions for candidates with a master’s degree or higher. This change means recent graduates from U.S. master’s programs stand a better chance of being selected than an individual with a Ph.D. from a university abroad.

The proposed rule is open for public comment through January 2, 2019. The Alcorn Immigration Law team urges you to provide feedback to USCIS on this proposal before the public comment period ends. And we advise clients to start collecting documentation for H-1B petitions ahead of the opening day of the H-1B lottery.

 

Higher Denial Rates

Denial rates for all immigration petitions during the first nine months of fiscal year 2018 (October 2017 through June 2018) jumped 43 percent from the previous year, according to USCIS. The denial rate for Form I-129 (Nonimmigrant Worker Petitions), which is used to apply for several visas including H-1Bs, increased to 22 percent from 19 percent in the past year.

Last month, Compete America, a coalition of American employers and higher education and industry associations, sent a letter to the Department of Homeland Security and USCIS. In it, the group asserts that changes in how USCIS adjudicates H-1B petitions have led to more Requests for Evidence (RFEs), Notices of Intent to Deny (NOIDs), and Notices of Intent to Revoke (NOIRs). The group states USCIS made these changes without going through the proper process for revising H-1B-related laws and regulations.

 

Shifting Review Standards

Compete America says employers are reporting issues with H-1B petitions when:

• A position pays an entry-level salary even if the position meets all of the requirements of a specialty occupation. The group notes that for some specialty occupations, an entry-level salary may still require years of study and experience.
• The sponsored professional holds a degree in an alternative or related field. For example, top American universities teach bioinformatics through degrees in bioinformatics, public health, biology, genomics, or computer science. Yet, if an employer hires a professional without a bioinformatics degree for a bioinformatics position, USCIS denies the H-1B petition.
• The occupation does not require a bachelor’s degree or higher. Nothing in the statute requires a bachelor’s degree or higher in every specialty occupation.

Compete America asked that both DHS and USCIS review the current H-1B adjudication practices and provide clarification before the next H-1B lottery.

 

Strong Petitions Remain Key

Given the higher denial rates, it’s imperative that employers and candidates put their best foot forward when filing an H-1B petition.

The Alcorn Immigration Law team has helped hundreds of employers file successful H-1B petitions even amid shifting review standards. We have a proven process for success by taking initiative and creatively solving problems. We have also helped many find alternative options. Reach out to us if we can help.