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DHS Proposes Merit-Based Rule for More Effective and Efficient H-1B Visa Program

The Department of Homeland Security has proposed rule that would require petitioners seeking an H-1B visa to first electronically register with U.S. Citizenship and Immigration Services (USCIS) during a specific registration period. This rule also would allow the USCIS to temporarily suspend registration for some time, which would cause up-front delays, but allow them to address any technical issues before rollout - and that won’t happen until the fiscal year 2020 (April 1st, 2019).


Shifting to electronic registration is expected to cut costs, reduce wait times, and increase efficiency for both petitioners and the USCIS alike, relieving the latter in particular of a massive administrative burden. The proposed rule also limits how many petitions can be filed to a given beneficiary, which helps protect the integrity of the system.


Currently, the H-1B program allows companies in the USA to temporarily employ foreign workers in speciality occupations that require specialized knowledge and a bachelor’s degree (or its equivalent) or higher. However, there is a limit, or cap, on how many such visas are permitted each year. When the USCIS receives more applications than the limit allows, a lottery is used to select from among the pool.


The visa process also allows for exemptions for those who hold a master’s degree or above from a U.S institution. In years when both the H-1B cap and the advanced degree exemption are reached within the first five days of filing, the advanced degree exemption takes priority and is selected first. This new rule would reverse that and prioritize hitting the H-1B cap. Only afterwards would the USCIS select petitions towards advanced degree exemption. This means that altogether, an estimated 16% more individuals with advanced degrees (master’s degree or above) from a U.S. institution will be awarded an H-1B visa.


This helps the USCIS fulfill the Buy American and Hire American Executive Order, issued by President Trump on April 18, 2017. The order specifically mentioned the H-1B program and directed DHS and other agencies to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”