United States Immigration and Citizenship Services (USCIS) has announced reversal of the order of conducting the 'Regular' and 'Masters' cap lottery for H-1B visas.
The regular lottery will be conducted first, giving those with a US master's or higher degree a second and better chance of winning the H-1B lottery. The annual quota for initial H-1B visa allotments remain unchanged at 85,000.
"The proposed process would result in an estimated increase of up to 16 per cent (or 5,340 workers) in the number of selected H-1B beneficiaries with a master's degree or higher from a US institution of higher education," stated USCIS in statement released late on Friday night.
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USCIS has also announced, the requirement for employers wishing to sponsor H-1B employees to first electronically register with the USCIS, during a designated registration period.
TOI had analysed the impact of this move in its front-page edition of November 26. Full H-1B applications with supporting evidence will have to be filed only for registrations that were selected in the lottery, as opposed to the current practice where all applications have to be filed upfront. In this regard, USCIS has estimated the annual cost saving for sponsoring companies to range up to $ 76 million.
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 for those having an advanced degree from US universities ¨C referred to as 'Masters' cap.
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Employers, submit applications for H-1B visa for employees they wish to sponsor for work in the US, during the first week of April and within days the quota is met. Thus, since 2013-14, the USCIS has had to resort to a lottery (random selection mechanism).
Currently, the 'Masters' cap lottery is conducted first, cases not selected in this lottery are then placed in the 'Regular' cap lottery for another round of random selection. For the 2018-19 season (FY ending September 30, 2019), the US agency received 1.90 lakh applications, of which 95,885 were from those eligible for the 'Masters' cap.
"One aspect of the proposed rule is flipping the lottery order around. It proposes that the 'General lottery' is first undertaken and will put all the 'Masters' cap eligible individuals through that lottery. Then, it will put unselected eligible people through the 'Masters' cap lottery. By reversing the order, it will improve the odds of those with US Master's degrees and higher. However, it will have the effect of reducing chances for those with just a bachelors degree, it will also hurt doctors," says Greg Siskind, founding partner at Siskind Susser , an immigration law firm.
Siskind explains, "Doctors who train in the US in graduate medical education(GME) programs don't meet the definition of a US advanced degree for the purpose of qualifying in the bonus 20,000 lottery each year, because the GME does not end with a degree like a Master's or a PhD With a flip in the lottery order, they will have worse odds than under the current system." He points out to the shortage of doctors and the need for making it easier for expat medical practitioners to stay in the US.
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According to Open Doors Data, nearly 16,475 international students were enrolled for a graduate degree in the health profession during 2017-18. While the number of Indian students engaged in medical studies in US is not known, overall Indians constitute a major chunk of expatriate doctors. US employed nearly 60 per cent of 86,680 Indian doctors working overseas according to OECD's International Migration Outlook (2015).
"The reversal in lottery order is likely to impact us. Most of our employees do not have advanced degrees from the US, this will make it more challenging to obtain an H-1B visa," says an official in the legal team of a mid-sized tech company.
"It its announcement release, USCIS tries to claim that the proposal is a 'merit-based rule', but the only aspect that deals with merit is the idea of reversing the order in which the lotteries are conducted. There is nothing in the rule related to higher-paid or higher-skilled workers being selected first," says Emily Neumann, immigration attorney and partner at Reddy & Nuemann.
The proposed rule covering both pre-registration and a reversal in the lottery order, is an outcome of President Trump's 'Buy American, Hire American' executive order. Public comments are open for 30 days and the aim is to usher in this rule by April 1, for the forthcoming H-1B filing season. However, the online registration requirement could be deferred if it cannot be implemented in time.