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Proposed H-1B Pre-Filing Registration System

In accordance with BAHA (“Buy American Hire American,” Executive Order 13788), which calls for regulatory “reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries,” the Department of Homeland Security, on December 3, 2018, published a proposed rule to implement a pre-filing registration system for U.S. employers seeking to participate in the agency’s H-1B visa program. The new system would first fill the 20,000 visas reserved for foreign nationals with advanced degrees from U.S. institutions. Then, the general lottery would take place from among the anticipated 200,000 or so registrants in order to fill the 65,000 visas reserved for those with a Bachelor’s (or higher) degree (or its equivalence in college courses and/or work experience, where three years of related work experience equates to approximately one year of undergraduate work). In past years, the general quota has been filled first, followed by the Master’s quota. This proposed processing reversal would likely lead to a higher number of advanced degree individuals receiving H-1B visas (due to some relief in cap-gap and other restraints currently endured by prospective H-1B beneficiaries). Also, it has the potential to cut down on expensive and time-consuming work performed by employers and their immigration attorneys as the extensive amount of paperwork can remain digitized, exchanged, and stored until and unless a petitioner’s beneficiary is chosen by the lottery. Only then would the paper filing require printing, compilation, and original signatures. It is unlikely that the program will be implemented in time for the FY2020 H-1B season beginning April 1, 2019, so look for a registration start date sometime in early 2020.

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