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Proposed H-1b Changes for the 2019 Fiscal Year

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The last two years saw a number of modifications of H-1b rules and interpretations.  We saw a high number of H-1bs that took well beyond Oct 1st to be adjudicated (some are still pending!), we saw Level 1 and Level 2 issues surface ad nauseam in various forms. We saw a high bar for what is considered specialized employment, and we saw an uptick in both Requests for Evidences and Denials because of this. Suspension of premium processing has also made it quite hard for employers and employees alike.

This year, there may be some additional changes coming up. USCIS has proposed changes that include changes in how H-1bs are allotted and how the lottery procedure is conducted.  See here for the proposed rule.

Now I must stress the importance of the word “proposed” here.  We are all too quick at selling headlines, and I don’t want to be a part of that hysteria.  This rule is NOT IN EFFECT yet. Not so, as of Dec 7, 2018.  This is a proposal. That means that this rule will likely undergo review and changes. Let’s just keep our eyes out for what the final rule will be.

The two biggest proposed changes are: 1) a 15 day window for registering H-1bs prior to filing LCAs or I-129 petition. This will make it less cumbersome for those who are not selected in the lottery. And 2) a reverse in the order of the lottery, so the Regular cap lottery gets selected first, and then the Master’s cap. This is projected to provide a 16% increase in the H-1bs allotted to those holding a US Master’s Degree.

Please be alert and aware as to whether and when changes to H-1b occur.  If you or your company work with an attorney (highly recommended), make sure you talk to your attorney about how these (or other) changes will impact your application.

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