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In the Spirit of George H.W. Bush, an H1-B Pre-registration Immigration Proposal Worth Cheering

The passing of President George H.W. Bush has me thinking about how different of a world we live in compared to when President Bush signed the Immigration Act of 1990 and, as he said, “opened the front door” on legal immigration. Unlike that kinder and gentler approach to immigration, this last year has been a difficult one for immigration lawyers and employers seeking to employ foreign employees. Employer sponsored visa petitions that would have been easily approved just a few years ago are being increasingly scrutinized and employers are either being asked to respond to onerous “Requests for Evidence” or facing outright denials (see our previous post). In line with its “Buy American, Hire American” policy, the current administration has generally made it more difficult for foreign employees to take jobs that, it believes, could be done by American workers.

While the current administration has talked about enacting rules that would have a real deterrent effect on H-1B candidates — eliminating the ability of spouses of H-1B holders to work, for example — the new regulations that were proposed late last week will surprisingly make things easier for employers by giving applicants with advanced degrees a better chance under the lottery system.

Until now, the biggest hurdle for employers seeking H-1B visas has always been securing the right to apply through the lottery system. Currently, there is a 65,000 candidate visa cap, along with an additional 20,000 slots for professionals with a Master’s degree or higher from a U.S. university. Since the number of petitions filed each year has greatly exceeded that cap — nearly 200,000 petitions were filed in 2017 — many employers currently spend a tremendous amount of time and money preparing petitions only to lose out in the lottery.

New regulations from USCIS and DHS propose using a pre-registration process that would take place before the April 1 deadline each year in which employers would electronically register each beneficiary for whom they were seeking a visa. USCIS would then conduct a lottery and would notify the “winners” that they could then file their petitions, at which point the employer would at least know that any petition that it filed would be considered on the merits and not eliminated because there were too many petitions.

The current lottery’s methodology would also be revised. Presently, the USCIS first selects 20,000 candidates with a U.S. graduate degree and then selects an additional 65,000 candidates from the remaining pool, including any persons with graduate degrees who did not make the first 20,000 candidate cut. Under the proposed regulations, the process would be reversed: The USCIS would first randomly select the 65,000 candidates from the entire pool and then pick an additional 20,000 from the remaining candidates with a graduate degree. While it may appear that these methodologies are equivalent, anyone who has taken a course in probability will know that the proposed process will increase the chances for candidates with graduate degrees, which goes along with President Trump’s stated goal that the H-1B visa be used for only the best and the brightest. While some employers — those seeking to sponsor candidates with Bachelor’s degrees — will probably be disadvantaged by this change, others who seek to employ mostly highly educated candidates will likely benefit. Regulations that will make it easier for employers to secure an H-1B visa for their employees are a breath of fresh air and a fitting homage to the memory of 41.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.