Big Changes to the H-1B Process
Today, the Department of Homeland Security (DHS) posted the final rule that will significantly change the H-1B process. First, DHS will reverse the order by which H-1B petitions are selected under the regular cap and the advanced degree exemption favoring those who graduate from U.S. institutions with a Master’s degree or higher. This change will take effect April 1, 2109. The second change, which will not be implemented until next year, will impose a mandatory registration system for all employers filing cap-subject H-1B petitions. Details of the final rule are as follows:
The New Reversed Lottery
This rule, which goes into effect on April 1, reverses the order of counting the petitions toward the H-1B allocations. Under this new rule, USCIS will first count all cap-subject H-1B petitions, including those that may be eligible for the advanced degree exemption, towards the regular cap until the projected number of petitions needed to meet the regular cap is reached. Once the regular cap projected number is reached, USCIS will then count those petitions eligible for the advanced degree exemption and not selected under the regular cap toward the projected number needed to reach the advanced degree exemption allocation.
Registration Basics for FY 2021
The electronic registration requirement is suspended for this year’s FY 2020 cap season. It will not go into effect until next year’s FY 2021 cap season. Next year, the registration period will begin at least fourteen calendar days before the first day of filing and would last for a minimum period of fourteen calendar days. USCIS will give the public at least 30 days advance notice of the opening of the initial registration period via the USCIS website (www.uscis.gov) and separately announce the final registration date on the USCIS website. The new electronic registration process will start before April 1, in advance of the period during which H-1B petitions can be filed for a new fiscal year.
Government Shutdown Over, but…
On Friday, President Trump signed a continuing resolution that reopened the Federal government through February 15, 2019. Funding returns to the parts of the government affected by the shutdown, and affected agencies are expected to become fully operational over the coming days. However, the resolution passed on Friday authorized stopgap funding only for three weeks. If Congress and the President are unable to reach a further agreement, the agencies and programs affected by the most recent shutdown may again close at midnight on February 15.
How is International Travel Affected?
For now, for clients traveling internationally, the U.S. State Department and U.S. Customs and Border Protection have reopened. However, clients may continue to experience delays at ports of entry and border posts, as well as for visa issuances and consular interviews, as both the State Department and CBP work through delays caused by the government shutdown and become fully operational.
Business as Usual at USCIS and DOL
As mentioned previously, clients needing extensions of stay or changes of employer in the United States continue to be unaffected, as USCIS remained open with business as usual during the shutdown. USCIS is a fee-based government agency, and therefore the government shutdown did not affect the agency’s normal operations. Since the U.S. Department of Labor has had its full-year funding authorized, it also remains fully operational, meaning that Labor Condition Applications (LCAs) and Labor Certification (PERM) applications are able to be filed without delays. Should there be another partial government shutdown beginning midnight on February 15, these two agencies should remain fully operational.
E-Verify Delays Likely
There were also four additional immigration programs that were affected during the shutdown, all of which have been re-opened or re-started. For clients who use E-Verify when hiring new workers, E-Verify has resumed operations. However, given that E-Verify was unavailable for over a month, there may be continued delays as the service is reinstated.
We will continue to provide updates regarding the status of this situation. If you have any questions about this news update, please do not hesitate to contact our office.
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