On Dec 04 2018 by William A. Stock

CLIENT ALERT: USCIS Proposes Rule to Change H-1B Lottery

By William A. Stock and Steven R. Miller

On Monday, December 3, the Department of Homeland Security (DHS) published a notice of proposed rulemaking that would put in place an electronic pre-registration lottery selection system for cap-subject H-1B applications as well as reverse the order of selection for cap and advanced degree cap–subject petitions, calling holders of US-issued master’s degrees “more meritorious” than other beneficiaries.

This proposal is the Administration’s first attempt at regulatory change to an H-1B program already under siege from administrative and policy changes. The important thing to remember right now is that this is just a notice of proposed rulemaking. While whatever comes of this proposed change to policy might indeed alter the face of the program, nothing has happened yet, and the scope of what could happen is left to be seen.

There are reasons to be cautiously optimistic that this proposed rule might not reach implementation in its intended form.

As of today, the rule is available for review in the Federal Register, and public comments may be submitted up through January 2, 2019. The agency must then consider public comments on the rulemaking record. Whether and how public comments end up influencing the content of the rule is up in the air, though there are options for challenging an agency’s response to the record of public comment if the agency rejects the public’s input. For a thorough explanation of the rulemaking process, please see the Federal Register’s guide here.  We will be reaching out to employers with model comments that can be submitted before the deadline.

While the DHS announcement is jarring for employers and potential H-1B visa-holders alike, the new rule is not yet set in stone. For a more detailed analysis of the situation, read our full blog post here, and watch for updates on how you can get your voice heard and how we at Klasko are working to influence the rulemaking process.

Contact your Klasko attorney today.