Episode 47: Proposed changes to the H-1B lottery

It’s Oct. 26, and this is your BAL Immigration Report.

• Israeli nationals are now eligible for visa-free travel to the United States.
• Europe officially postpones its travel authorization program.
• USCIS proposes big changes to the H-1B lottery.

“In theory, we should see the initial selection rates in the lottery increasing and potentially fewer lottery rounds if this proposal is enacted.”

— Steve Plastrik, BAL Senior Associate

U.S. news

H-1B modernization proposal

U.S. Citizenship and Immigration Services has published a 227-page proposed regulation to modernize the H-1B visa program. The agency said the proposal will streamline H-1B requirements, improve efficiency, provide greater benefits and flexibilities, and enhance integrity measures.

The government will accept public comments on the regulation through Dec. 22 and will review comments before publishing a final rule. We’ll discuss the H-1B proposal more in this week’s spotlight when we look at how it would impact the H-1B registration process and lottery.

Israel joins Visa Waiver Program

Israeli nationals are now eligible for visa-free travel to the United States. The Department of Homeland Security announced last week that the electronic system for travel authorization is now accepting applications from Israeli citizens.

Successful applicants may travel to the U.S. for tourism or business purposes for up to 90 days without first obtaining a U.S. visa. Israeli travelers with valid B-1 or B-2 visas may continue to use them for travel to the U.S.

The United States designated Israel as the 41st member of the Visa Waiver Program in September.

U.S. news roundup

• A temporary policy that provides longer automatic extensions of some workers’ employment authorization documents ends today.
• USCIS issued updated policy guidance on the two-year foreign residence requirement for J nonimmigrant visas.
• A reminder — H-1B petitions for registrations selected in this year’s second H-1B lottery must be submitted by Oct. 31.

Spotlight

Conversation with Steve Plastrik, BAL senior associate: proposed changes to the H-1B program.

BAL Immigration Report: The USCIS H-1B proposal that was officially published this week is long and broad, touching on everything from the employer-employee relationship to cap-gap issues to rules surrounding site visits. Among the provisions that drew the most attention are those related to the H-1B registration lottery.  

Last year, USCIS received more than 780,000 registrations for just 85,000 visas. The agency saw a marked increase in the number of beneficiaries with more than one registration. In April, USCIS said that the data suggested that some employers were working to game the system and pledged to take steps to address the problem. We caught up with BAL Senior Associate Steve Plastrik to discuss the proposed rule and how it would change the H-1B lottery.

Plastrik: The H-1B modernization regulatory proposal that was formally published earlier this week touches on a lot of different areas and seeks to codify some existing policies. But one central change in the proposal is reforming how USCIS runs the cap registration and lottery process for H-1B visas. The main change in the proposal is that USCIS would select registrations in the lottery based on the beneficiary. And that means that no matter how many companies have submitted a registration on behalf of a single beneficiary, that individual will have the same chance of being selected in the lottery as somebody else who only has one registration.

Once a beneficiary is selected in the lottery, then each sponsoring employer that submitted a registration on their behalf into that lottery would get a notification that they are eligible to file an H-1B cap petition with USCIS. So that could set up some competitive pressure between potential employers who are competing to provide an offer to a particularly desirable foreign national beneficiary.

BAL: Plastrik says the proposal could help reduce the number of overall registrations and discourage bad faith actors.

Plastrik: Changing the H-1B cap lottery process to select by beneficiary as opposed to registration should change the incentives that have encouraged bad actors in the past. In other words, being entered in the lottery by multiple companies doesn’t increase your chances. For example, the proposal references one person in the previous year’s cap lottery that had 83 companies enter them into the lottery process. Chances are that individual was selected more than once during the first and second lottery round in this past year, but under the proposal that USCIS released earlier this week, that individual could only be selected once regardless of the number of companies that have sponsored them for the H-1B cap lottery.

The change here is really in the incentives for potential bad actors, and USCIS is aiming to reduce fraud and abuse that it witnessed last year. That said, there are valid reasons why a foreign national beneficiary would have multiple companies entering them into the lottery, and that’s still permissible under the proposal.

BAL: USCIS says the proposed change would potentially benefit companies that submit legitimate registrations for unique beneficiaries. We asked Plastrik if he agreed.

Plastrik: It certainly seems like that would be the outcome. In theory, we should see the initial selection rates in the lottery increasing and potentially fewer lottery rounds if this proposal is enacted. That said, the proposal has a number of different pieces beyond this registration component that we’ve been talking about. And those other pieces would have an impact on H-1B visa eligibility. So companies are still taking their time to assess how the various proposed changes in this regulation would impact their H-1B cap programs.

BAL: As employers begin to prep for next year’s cap season, the big question is whether changes to the lottery will be in place before registration begins in March. While USCIS has signaled it would like to see the changes in effect, Plastrik says the timing is tight.

Plastrik: Honestly, I think it will be challenging to have this in place by the start of the upcoming cap season in March. The proposal has a 60-day period for public comment from stakeholders and individuals who can submit comments to the Department of Homeland Security. That comment period will run until Dec. 22, and after that, the agency will review the comments and eventually publish a final rule, which will itself likely have a slightly delayed effective date. And interestingly, Homeland Security is signaling that it may split parts of this proposal into multiple final rules. It seems as though they would try to move forward on changes to the H-1B cap registration system while taking longer on other provisions.

If I had to guess, I’d say getting any of the proposed changes in place before cap registration season opens in March will be a challenge. First, the agency has other regulatory priorities on its plate. It has a rule that it’s proposing related to adjustment of status, and it’s also still working on a final version of its updated fee rule. We know that the agency wants to avoid the selection issues in the last fiscal year, so we do expect them to push these changes forward, but it’s a tight schedule. And second, proposed changes like these always come with the possibility of litigation. And, as we’ve seen in previous administrations, litigation can delay or completely derail regulatory proposals like this.

BAL: BAL Community is hosting a webinar at 1 p.m. Eastern Time Monday, Oct. 30, to break down the key takeaways of the H-1B proposal. The webinar is open to the public. For more information, visit community.BAL.com.

Global news

EU again delays travel authorization system

The European Union has confirmed it will delay a forthcoming travel authorization system. The European Travel Information and Authorization System, or ETIAS, is now slated to launch in mid-2025.Nationals of 60 visa-exempt countries will then be required to use ETIAS to obtain electronic travel authorization before flying to Europe. ETIAS has been delayed several times and was previously expected to debut in 2024.

Canada reduces staff in India

Canada’s immigration agency is reducing its number of employees in India from 27 to five. The announcement by Immigration, Refugees and Citizenship Canada, or IRCC, confirmed that this staff reduction is a direct response to Indian government action. India recently removed certain immunities for Canadian diplomats and demanded parity in diplomatic staffing.

IRCC will continue to accept and process applications in India. However, reduced staffing is expected to impact processing times.

Global news roundup

• An increase to the immigration health surcharge in the United Kingdom is set to take effect in January.
• China has eased appointment procedures for some visa applicants.
• South Africa launched its new Trusted Employer visa scheme.

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