RESTON, Va. (February 25, 2019) – While there have been many changes to the U.S. immigration system—not all of them positive—these may provide some benefits to international students with advanced degrees from a U.S.-based institution as well as employers.
In January 2019 the Department of Homeland Security (DHS) issued a final rule seeking to amend the regulations governing the H-1B visa program, including how such visas are counted and also establishing an electronic registration system.
Perhaps of greatest interest to international students is the rule change that addresses how H-1B visas are counted for H-1B petitions subject to the cap as well as those awarded to beneficiaries with advanced degrees from U.S. institutions of higher education who are eligible for an exemption from the regular cap (the “advanced degree exemption”). This change is effective April 1, 2019. Of interest to employers primarily, although international students as well since they are the beneficiary of an H-1B petition, is the creation of an electronic registration system to determine if an H-1B petition can actually be filed. This change will be effective for fiscal year 2020 at the earliest. Meaning, not until at least October 2020, or the fiscal year 2021 cap season.
To place this rule change in context, the number of H-1B petitions approved in fiscal year 2017 for workers with a bachelor’s degree was 45.2%, workers with a master’s degree was 44.5%, 6.8% had a doctorate, and 3.3% were for workers with a professional degree. India and China typically account for the highest percentages of beneficiaries.
H-1B Rule Change
The rule change does two things (i) it reverses the order by which cap-subject H-1B petitions and those petitions subject to the advanced degree exemption are selected or counted, which will benefit those with advanced degrees; and (ii) it creates an electronic registration system for H-1B petitions.
Selection Process
Reversing the order means that that Department of Homeland Security (DHS), and specifically U.S. Citizenship and Immigration Services (USCIS), will consider cases filed on behalf of applicants with an advanced degree from U.S. institutions of higher education first. This will benefit those with a master’s degree over those with a bachelor’s degree.
The total number of specialty occupation workers (i.e., bachelor’s or higher degree or its equivalent) who may be granted initial H-1B nonimmigrant status during any fiscal year currently may not exceed 65,000. Then there is another bucket that allows the granting of H-1B nonimmigrant status to 20,000 individuals under the advanced degree exemption.
The fiscal year runs from October 1st through September 30th. An employer can file an H-1B petition on behalf of an employee up to six months in advance of the employment start date. Due to the fact that there are generally always more petitions filed than numbers available, the date for filing petitions has been April 1st (as opposed to October 1). Upon receipt, USCIS has taken to randomly selecting cap-subject petitions to determine the number needed to reach the quota. Which is why, over the years, USCIS will announce that they have accepted enough petitions to satisfy the quotas and usually that announcement has been in April of every year, although sometimes later.
According to USCIS, the reverse selection order will “result in an estimated increase of up to 16% (or 5,340 workers) in the number of selected petitions for H-1B beneficiaries with a master’s degree or higher from a U.S. institution of higher education.” On the flip side, according to DHS, the new selection process “could decrease the number of cap-subject H-1B petitions for beneficiaries with bachelor’s degrees, advanced degrees from U.S. for-profit universities, or foreign advanced degrees.” It will also affect individuals such as doctors.
Electronic Registration System
The electronic registration system will not go into effect until next year’s H-1B cap season. The advantage to such a system is really for employers, from a cost perspective in that they will not have to work with their legal team, whether internal or outside, to put together the entire H-1B package up front. Instead, employers will submit a request and wait to determine if they have been selected before proceeding to prepare and submit the H-1B petition.
The process will work as follows—employers seeking to file H-1B cap-subject petitions will first electronically register with USCIS during a designated registration period. If selected, they will then be eligible to file an H-1B cap-subject petition, including for those with an advanced degree.
Conclusion
These changes are in line with the Administration’s 2017 Buy American and Hire American Presidential Executive Order, which, among other things, instructed DHS to propose “reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” DHS clearly states in the final rule that “this rule will prioritize beneficiaries who have earned a master's or higher degree from a U.S. institution of higher education.”
International students with an advanced degree from a U.S. institution of higher education stand to benefit the most from the rule change as the number of H-1B visas being awarded to those with a master’s or higher degree from the limited pool of H-1B visa numbers will be selected in higher numbers. Again, according to DHS, “the change to the petition selection process under [the] final rule could result in greater numbers of highly educated workers with degrees from U.S. institutions of higher education entering the U.S. workforce under the H-1B program.” At the end of the day, by reversing the order of the H-1B selection process it essentially gives those with a master’s degree or higher two bites at the apple and increases the odds of selection.
Prepared on behalf of GMAC by Montserrat Miller, partner in the Privacy and Consumer Regulatory; Immigration; and Government Affairs practice groups at Arnall Golden Gregory LLP in Washington, D.C.