HIGHLIGHTS
*Companies will have to pre-register electronically for the annual H-1B lottery, and then file ‘full-fledged applications’
*The documentation is exhaustive, especially for employers, like IT service companies, who place their H-1B employees at client sites
*It's feared that the new rule will give more leeway to the USCIS in deciding who can work in America
MUMBAI: From April, the filing season for the H-1B applications, companies hiring foreigners to work in the US through this popular work visa route will have to pre-register electronically for the annual H-1B lottery, and then file ‘full-fledged applications’ (referred to as petitions) for the winners.
Currently, petitions have to be filed upfront, together with all supporting evidence, just for entry into the lottery. The documentation is exhaustive, especially for employers, like IT service companies, who place their H-1B employees at client sites. The change will result in significant savings of administrative costs for the sponsoring companies (those hiring foreign employees). The move has been approved by the US Office of Management and Budgeta unit of the US president’s executive office.
Given the protectionist regime of Donald Trump’s administration, it is feared that the new rule will give more leeway to the US Citizenship and Immigration Services, which is the immigration arm of the US government, in deciding who can work in America.
Annually, only 65,000 H-1B visas are allotted under the regular cap (also known as general quota). An additional 20,000 visas are allotted under the master’s cap (for those having an advanced degree from US universities). Sponsoring employees have to submit the applications in the first week of April and within days the quota is met owing to which a random lottery mechanism is adopted. For the 2018-19 season, the US agency received 1.9 lakh applications. Indians typically garner more than 60% of the H-1B visas. Tech companies like Cognizant, TCS, Infosys and Wipro are among the top hirers.
TOI had analysed the fall agenda in its October 19 edition. One of the items dealt with electronic registration, with the object of enabling USCIS to “more efficiently manage the intake and selection process for H-1B applications”. Approval by the OMB is the first step towards a change in the H-1B filing mechanism. Next follows publication of the draft proposal in the Federal Registry, and receiving and considering public feedback —a process that can take three-six months. The proposal is then finalised.
USCIS director Francis Cissna has indicated that the aim is to finalise the proposal in time for April 2019.
David H Nachman, managing attorney at NPZ Law Group, explains the apprehension surrounding the move. “The implementation of the pre-registration program along with the new information requested in Form ETA 9035 (Labour Certification form), which came into effect from November 19, has the potential for abuse because the ‘fair and random H-1B lottery’ may be relegated to a closely guided and criteria-driven process.”
The new labour certification form requires employers to indicate whether H-1B workers will be placed at third party (client) worksites, details of the number of workers at each site and the names and addresses of their clients. “The data-sets available may be filtered to choose only those H-1B petitions which do not require third-party placements. Or to select petitions of sponsoring companies that only have a certain number or less of foreign employees. It could result in a discriminatory process for choosing which companies get H-1B visas,” explains Nachman.
“Another fall agenda item had mentioned that suitable reforms will be introduced to ensure that H-1B visas are awarded to the most skilled or highly paid employees and increase the probability of selection for those with a US master’s degree. Preregistration could perhaps also enable this,” says an immigration expert with a tech company.