New H1-B visa lottery process: More paperwork for those who hire foreigners

The Trump administration has introduced a new set of stringent provisions to the H1-B visa lottery process

The Trump administration has introduced a new set of stringent provisions to the H1-B under which, companies hiring foreigners to work in the US through the highly sought-after immigration option, will have to pre-register electronically for the annual H-1B lottery. They will then file ‘full-fledged applications’ for the winners. Currently, petitions have to be filed upfront, together with all supporting evidence, just for entry into the lottery. The new policy will entail additional paperwork atop the already cumbersome process, including increased scrutiny, especially for employers like IT service companies. Approval by the Office of Management and Budget (OMB) is the first step towards a change in the H-1B filing mechanism. 

What is the H-1B Visa Cap?

The H-1B Visa cap, enforced by US Citizenship and Immigration Services (USCIS), has a mandated limit of 65,000 for the regular pool and an additional 20,000 for the advanced degree. Sponsoring employees have to submit the applications in the first week of April and within days the quota is met owing to which a random lottery mechanism is adopted.

Why the decision affects India

Indians typically garner more than 60% of the H-1B visas. Tech companies like Cognizant, TCS, Infosys and Wipro are among the top hirers. Experts say the proposals on H1-B visa pose a threat for the IT companies’ margins. These proposals could reduce the number of visas available for those without the US advanced degrees. Indian IT companies pre-dominantly employ people with bachelor’s degrees. Some companies are already facing margin pressure as tighter visa rules require them to hire US citizens and sub-contract work if they cannot hire quickly enough.

— One of the items dealt with electronic registration, with the object of enabling USCIS to “more efficiently manage the intake and selection process for H-1B applications”.   

— Next follows publication of the draft proposal in the Federal Registry and receiving and considering public feedback —a process that can take three-six months. The proposal is then finalised. David H Nachman, managing attorney at NPZ Law Group, explains the apprehension surrounding the move to Economics Times.

“The implementation of the pre-registration program along with the new information requested in Form ETA 9035 (Labour Certification form), which came into effect from November 19, has the potential for abuse because the ‘fair and random H-1B lottery’ may be relegated to a closely guided and criteria-driven process.” The new labour certification form requires employers to indicate whether H-1B workers will be placed at third party (client) worksites, details of the number of workers at each site and the names and addresses of their clients. “The data-sets available may be filtered to choose only those H-1B petitions which do not require third-party placements. Or to select petitions of sponsoring companies that only have a certain number or less of foreign employees. 

It could result in a discriminatory process for choosing which companies get H-1B visas,” explains Nachman. “Another fall agenda item had mentioned that suitable reforms will be introduced to ensure that H-1B visas are awarded to the most skilled or highly paid employees and increase the probability of selection for those with a US master’s degree. Preregistration could perhaps also enable this,” says an immigration expert with a tech company.

The draft plan is confidential for now. However, USCIS made a similar proposal in 2011, which could be a model for the agency’s forthcoming regulation:

Initial pre-registration period: The pre-registration period could be as usual in April.

Cap selection lotteries: According to US immigration firm Fragomen, it is anticipated that USCIS would retain the cap lottery system and use the lottery to select H1-B petitions eligible for filing. Once the pre-registration period ends, USCIS would run the standard and master’s cap selection lotteries and choose enough registrations to meet the 85,000 H1-B quota. The agency could propose some changes to the way cases are selected in the lotteries and the way cases are counted against the annual quota.

Petition filing period: Full H-1B petitions and supporting evidence would be filed only for registrations that were selected in the lottery.