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 serious issues with DHS’ efforts to push the registration rule into effect immediately, and potential problems not addressed in the rule. Similarly, 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 comes at the expense of other qualified applicants and could have other unintended consequences.
USCIS is proposing to require petitioners to use the digital pre-registration system for the FY2020 application period beginning just around the corner– on April 1, 2019. The final rule governing the process would likely be published just months prior– in February or March of that year. This means that employers won’t have final clarity on the new process until a matter of weeks before the filing period opens. The vast majority of employers filing a thorough and strongly evidenced petition will have already begun to prepare their petitions under the old process anyway, undermining USCIS’ 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 will most likely err on the side of caution to provide a comprehensive filing, which takes time, just in case USCIS does not have the program running by April 1. USCIS recognizes 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; but USCIS has simultaneously signaled its hopes to push the process forward for 2020 without justification.
These timing issues could also become inherent to the H-1B process itself as the agency proposes “staggering” application windows and allowing only 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 could exacerbate these issues.
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. USCIS acknowledges this risk in their proposal and suggests 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.”
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 USCIS’ 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. 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 USCIS 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.
This brings us to one of the biggest challenges with this proposal – it is unclear if it is lawful for USCIS to change a process that Congress seemed to already specify, 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. It will be interesting to see how USCIS will argue that the new system, which would first process U.S. Master’s holders in the general cap before selecting the petitions exempted because of advanced degrees, is in line with Congressional intent. Observers are already calling the legality of the proposal into question.