Widespread Nod for New H1B System of Trump Administration

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Washington, DC – The legal experts and general beneficiaries responded with a positive reaction as the US Department of Homeland Security (DHS) announced new rules reversing the order by which US Citizenship and Immigration Services (USCIS) selects H1B petitions under the H1B regular cap and the advanced degree exemption, and introduced an electronic registration requirement for petitioners seeking to file H1B cap-subject petitions.

Releasing the new procedures, L. Francis Cissna, the USCIS Director said, “These simple and smart changes are a positive benefit for employers, the foreign workers they seek to employ, and the agency’s adjudicators, helping the H1B visa program work better.”

Commenting on the post-implementation effects of the new registration system, Cissna noted it, “will lower overall costs for employers and increase government efficiency.”

“We are also furthering President (Donald) Trump’s goal of improving our immigration system by making a simple adjustment to the H1Bcap selection process,” said USCIS chief, adding, “As a result, US employers seeking to employ foreign workers with a US master’s or higher degree will have a greater chance of selection in the H1B lottery in years of excess demand for new H-1B visas.”

On April 18, 2017, President Trump issued the Buy American and Hire American Executive Order, instructing DHS to “propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of US workers in the administration of our immigration system.” The executive order specifically mentioned the H1B program and directed DHS and other agencies to “suggest reforms to help ensure that H1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” (Read more: Experts Weigh Pros and Cons of Trump Action on H-1B Visa)

Welcoming the new regulation as “a step in the right direction to ensure our country retains students that earned a Master’s Degree in the United States,” Attorney Devang Shah, partner in Shah and Kishore Immigration Law firm noted, “The new system increases by16% the possibility of having their case selected in the H1B lottery.”

The ideal next step to ensure “we retain the best and brightest,” Shah suggested for the US, “to exempt these students from the H1B quota/lottery.” The immigration attorney, however, expressed concern regarding the new system, “that companies could submit a large number of potentially unnecessary or unqualified applications due to the ease of filing without having to evaluate whether a position or employee would qualify for H1B status.”

Effective April 1, USCIS will first select H1B petitions (or registrations, once the registration requirement is implemented) submitted on behalf of all beneficiaries, including those that may be eligible for the advanced degree exemption. USCIS will then select from the remaining eligible petitions, a number projected to reach the advanced degree exemption.

In a statement to IAT, the South Asian Bar Association of North America (SABA) said, “SABA North America is pleased that the DHS responded to public comments expressing concern about instituting an electronic registration system this year, and decided to postpone its implementation until after this year’s H1B cap filings.”

Asking for pragmatic measures for rigorous testing and smooth implementation, SABA added, “We look forward to receiving more information about the way this system will be implemented and call for the administration to rigorously test this system before it is implemented.”

“Changing the order in which USCIS counts these allocations will likely increase the number of petitions for beneficiaries with a master’s or higher degree from a US institution of higher education to be selected under the H1B numerical allocations,” according to the USCIS.

“Undoubtedly, this changed process will provide better access to job opportunities for persons who have earned US master or higher degree,” agreed Attorney Ramesh Khurana, US Supreme Court and Member, American Immigration Lawyers Association. But Khurana raised a point, “that simply possessing an advanced degree from a US university cannot serve as the sole means by which the usefulness of a potential beneficiary might be gauged.”

Citing examples, Khurana, said, “The best example when the US businesses who hire professionals in areas where an advanced degree is not typically required, such as accounting, architecture and public education, would really realize more difficulties to win the random lottery as a result of these changes.”

According to a release from the DHS, the rule will be published in the Federal Register on January 31, and will go into effect on April 1, though the USCIS announced it, “will be suspending the electronic registration requirement for the FY 2020 cap season to complete user testing and ensure the system and process are fully functional.”

On the implementation and suspension, Immigration Attorney Khurana concluded, “However, the electronic registration requirement has been put in abeyance for the fiscal year (FY) 2020 cap season, which means will be implemented as from April 01, 2020.”

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