United States: Fixing the H-1B Lottery – Setbacks for Non-U.S. Degree Holders

President Donald Trump has made immigration a very hot topic. Ever since his campaign for the Presidency, his has focused on (1) reinterpreting the policy around business visas, resulting in higher visa denial rates without statutory changes, and (2) deporting undocumented aliens who enter and work in this country illegally. While detention and deportation of illegal immigrants make the news, the Trump Administration’s regulatory changes that affect business immigration are less headline grabbing. And yet some of those changes may have a great impact on international companies.

The Department of Homeland Security recently published a much-anticipated notice of proposed rulemaking regarding the H-1B process. [Link to new rule] The H-1B visa is known as the “workhorse” of the visa system. Although only a limited number of them are available annually (and a random lottery is generally conducted), the H-1B is the temporary work visa that companies generally use to employ professionals when they cannot find U.S. workers to fill the roles. It is used extensively in the high tech, biotech, and financial industries.

President Trump, with his “Buy American, Hire American” Executive Order, [Link to order] made clear that he would like to see “the best and brightest” come to the U.S. through the H-1B process. To this end, DHS has proposed to change the current random selection process. According to DHS, the outcome will be an estimated 16% increase in beneficiaries accepted with a U.S. master’s (or higher) degree. [Link to blog] This will not only make it more difficult for companies to hire individuals to fill positions that only require a bachelor’s degree, but will also make it more difficult for companies to hire individuals who have foreign degrees.

The comment period for the proposed rule ends on January 2, 2019. While it is not clear that the entirety of the new rule can be implemented before the H-1B lottery in April 2019, the new selection process may go into effect.

Jackson Lewis will continue to follow these developments and provide updates as they become available.