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H1B Final Rule- A Last Hurrah of H1B Filings as We Know It

This morning at around 7:30am PST, the DHS released the final rules for changing the H1B filing procedures. While there is no ‘hurrah’ about H1Bs, it certainly will be the last year of filing H1Bs as we know it.

Past administrations had discussed creating a pre-registration process by but they never got past the discussion phase. However, in keeping with the theme of this administration, an executive order, otherwise known as Buy American Hire American (BAHA) set in motion changes that otherwise may not have happened.

The highlight of the final rule, at least for this April, is that the lottery process will be reversed. (I suspected that this would be the case when the proposed rules were released). In other words, all bachelor’s and master’s cap cases will be in the initial selection process. And then there will be a master’s cap selection process. The intent is to capture more master’s applications. And while this might sound like good news for people with master’s degrees, in my opinion, it not necessarily good news for the long term health of the economy. This is because there are many industries in which professionals have predominantly foreign degrees- such as the medical field. It also discards the benefit of hands on experience that people offer to employers. The better solution would have been for Congress, as part of comprehensive immigration reform, to increase the total number of H1bs while also allocating a larger number for master’s degree holders.

I read almost all of the 214 pages as soon as the rules were released this morning. Admittedly, DHS appears to have read all the 817 comments submitted online and some 300 comments submitted by mail. While there were comments about the legality of the reversal, DHS relies on the ambiguity of the statute- stating that there isn’t any language prohibiting the reversal. The final rule also clearly states that this change is being made to satisfy the BAHA executive order. Once again, the presidential executive orders ‘trump’ congressional action.

I have to say that I am very relieved that the preregistration process is suspended until next year. Though I had suspected that might be the case, it is hard to make any predictions about this administration’s actions. It appears that DHS did take heed of comments made on this issue- which apparently were substantial. A significant portion of the 214 pages were dedicated to the comments and answers regarding the preregistration process.

One of the highlights of changes made in the final rule, based on comments, was that people will be given 90 days instead of 60 days to file H1B petitions after being selected. I too made that comment in my submission and I am glad to see it implemented.

However, part of the ‘last hurrah’ as I see it is that next year’s H1B process will be completely different. I worry that the entire process will drag on over a longer period. First, we will have to prepare to submit the pre-registration application. Only if selected, we will then have 90 days to submit applications. And DHS states in the rules that they will not guarantee adjudication by September. So if RFEs are issued, we can be sure that for most cases, if 2018 is anything to go by, adjudications can reaonably be predicted to go into the following year.

The final rules touch on the timing of filing LCAs, but there are pros and cons to filing an LCA before you know you have been selected. And goodness knows that the Icert system has a difficult time keeping itself usable in the month of March generally. So, yes, there may be efficiency eventually but I do worry about how the overall length of time for processing cases next year and beyond.

In any event, the fact is that we have new rules and we must get used to them in due course. At least for this year, we can look forward to the certainty of when to file and the certainty that USCIS will continue to be over zealous in trying new ways to deny cases- all in the name of Buy American Hire American.

And if you are someone with a bachelor’s degree hoping to win the H1B lottery, it is best to discuss alternative options sooner rather than later.