What You Need to Know About the Proposed H-1B Visa Rule

The proposed rule would shake up the H-1B visa process.
By: | January 9, 2019 • 2 min read

Now on day 20, the U.S. government shutdown is starting to hurt more than the approximately 800,000 federal workers who’ve been furloughed without pay. It may also become the longest government shutdown in history if it continues through to the end of this week. We mentioned ways the shutdown is affecting HR but wanted to highlight another program that’s also in limbo: the Department of Homeland Security’s proposed rule about H-1B visa applicants.

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The proposed rule would require all employers to register H1-B visa candidates electronically two weeks before the April 1 deadline. After candidates are registered, the candidate lottery would take place and only employers of the selected candidates would be invited to submit a full visa application. The idea is to cut down on paperwork and, ultimately, save employers millions of dollars in administrative fees for their H-1B workers. The proposed rule also flips the order of the lottery so that the 65,000 base-cap (for candidates with at least a bachelor’s degree) is drawn first then the 20,000 master’s-degree-level cap. The goal of this reversal is to increases the odds of more H-1B workers with master’s degrees (or above).

Scott Bettridge, chair of the immigration practice at law firm Cozen O’Connor, says his best advice for employers looking to sponsor H-1B workers is to start identifying them now. He says that traditionally, employers have been able to identify prospective H-1B workers and prepare the cases for them in early-to-mid March, which also allowed enough time to receive an approved Labor Condition Application from the Department of Labor. The DHS’ proposed rule would shorten the amount of time employers have to identify and prepare cases for their H-1B workers.

Bettridge says that the registration system is also expected to include an “attestation requirement” for employers to confirm that the contents of each registration are true and accurate and that the employer intends to employ the beneficiary consistent with the registration.

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“This attestation is intended to ensure that each registration is connected with a bona fide job offer and, to the extent selected, will result in the filing of an H-1B petition,” he says. “Any final rule may include prospective penalties for submitting a registration, and then not filing an H-1B petition upon selection, which could include a limit or restriction on future use of the program.”

He reiterates that employers must plan now and ensure they identify both who they will file for and the occupation the candidate will fill.

“This would put employers in the best position possible to move ahead quickly and easily with any registration process implemented with a chance to access coveted H-1B cap numbers,” says Bettridge.

Danielle Westermann King is a former staff writer for HRE.