Analysis of the Proposed Rule and Potential Problems
The effort to digitize immigration services has been a focus for this Administration and is desperately needed to move our immigration system into the 21st Century. The proposed pre-registration system could go a long way to reduce the cost of filing petitions and save time, money, and resources, particularly for smaller employers hoping to hire qualified workers.
However, there are significant problems not addressed in the rule, and while the goal of increasing the number of advanced-degree holders graduating from US schools who are able to stay and work in the country is laudable, it is not clear this change to the selection process is the best way to achieve it, as it could come at the expense of other qualified applicants and could have other unintended consequences.
In response to comments from organizations like FWD.us, DHS has chosen to delay implementation of the pre-registration system until at least next year, so that employers can best prepare and the system can be tested. If the new system were implemented this year, employers would not have had final clarity on the new process until a matter of weeks before the filing period opened. The vast majority of employers filing a thorough and strongly evidenced petition would have already begun to prepare their petitions under the old process anyway, undermining DHS’ basis for the proposed rule to save time, resources, and paperwork.
Furthermore, especially in light of USCIS’ recent Issuance of Certain RFEs and NOIDs memo, which permits USCIS adjudicators to more readily deny an H-1B filing if it lacks certain information, employers would most likely err on the side of caution to provide a comprehensive filing, which takes time, just in case USCIS did not have the program running by April 1. DHS recognized the challenge to administer the proposed program in time for 2020 filings, and included language allowing the agency to suspend the process for FY2020 if needed, which they agreed to do in the final rule.
DHS also acknowledged concerns around inherent timing issues if the agency implemented “staggered” application windows and only allowed 60 days for employers to prepare petitions after hearing back from the agency. Under the current system, delays across the process (including in approving an LCA from DOL or receiving a decision on a petition from USCIS) cause difficulties for workers hoping to begin work on October 1st who do not hear back in time – the staggered application windows would have exacerbate these issues. Accordingly, DHS agreed to extend the filing period to 90 days, and to abandon the “staggered” filing window proposal.
Potential for False Demand
Because the requirements for registering under the new process require very little information from an employer, there is a risk of employers flooding the system with registrations that are not ultimately followed by legitimate, well-evidenced applications. DHS acknowledged this risk in their initial proposal and suggested some ways they will work to mitigate the threat, but even the agency admits “DHS does not currently have a solution for the registration process, or any of its filing processes, that guarantees prevention of all non-meritorious registrations or filings prior to adjudication.” The final rule states that “DHS does not anticipate a significant increase in overall petitions due to the registration requirement,” but did not add much additional detail.
Changes in Selection Sequence
While few would argue with the goal of recruiting and retaining more advanced degree-holders, particularly those who graduated from U.S. colleges and universities, there could be harmful consequences of DHS’ proposal here. For one, the reversed process could disadvantage qualified applicants educated outside of the U.S., including those with PhDs and specializations in crucial fields, such as doctors educated abroad who finish their training here. This could also disadvantage employers seeking to hire qualified and needed lower-level bachelor’s degree-holders, as the cap-subject pool would be crowded by those who are eligible for the exemption.
More concerning is the potential for DHS to use the new lottery process to avoid issuing the full 85,000 available visas. David Bier of the Cato Institute explains:
Suppose 20,000 master’s degree holders apply during a year, while 65,000 bachelor’s degree holders apply. There should be enough visas for everyone under Congress’s scheme. But under DHS’s regulation, the 20,000 master’s degree holders would be counting against the 65,000 cap throughout the year. Once that’s hit, then there’s maybe 5,000 master’s degree holders left and 15,000 bachelor’s degree holders. But only the 5,000 can get visas under the master’s exemption, resulting in a 15,000 visa cut to the H-1B program.
Congress created the advanced degree exemption because they did not intend the program to be solely for those advanced degrees holders – they recognized a need for workers with different educational backgrounds. This rule could be used to go around Congress’ intent and further restrict not only who is likely to receive H-1B status, but how many. Despite these concerns, DHS has chosen to move forward with modifying the selection order.
Some have questioned whether it is lawful for DHS to change a process that Congress seemed to already structure, via legislation, simply through rulemaking. As noted above, the current process seems to follow from federal statute establishing that advanced degree holders are not counted against the cap until the 20,000 advanced degree exemption H-1B spots are granted. DHS argues their interpretation of that language allows them to change the order, but experts have called that interpretation into question.