The Future of the H-1B Visa

The H-1B visa lottery could be coming to an end. The Trump administration is proposing a new rule that would eliminate the annual lottery that grants 65,000 annual petitions and an additional 20,000 for those with advanced degrees from US-based colleges.

The new process would have the USCIS accept registrations before the fiscal year begins, traditionally April 1. Should the applications exceed the H1-B limits, the lottery would be replaced by a system that goes from highest to lowest salary.

Insight from Ira Kurzban

Ira J. Kurzban, Esq., founding partner and author of Kurzban’s Immigration Law Sourcebook, was quoted in the Forbes article, “USCIS recognized that the use of factors such as salary would require a statutory change and their effort to do it here as a regulatory matter is ultra vires (beyond one’s legal authority).”

“The statute is designed to provide an avenue for employers to hire a person in a specialty occupation,” continued Kurzban. “It is not rational to give preference in the selection to people who are paid more because it is not necessarily tied to the specialty occupation designation.”

Those impacted by the change range from international students to technology professionals, potentially shutting them out of the process. The change in the HB-1 registration system will likely create challenges in an already complex process.

Employers will also find the new system difficult when it comes to recruiting students due to the H-1B visa being the only way to secure their services over the long term. Their only alternative may be to pay those with no work experience at the same rate as employees working for several years. The policy could be both expensive and negatively impact the workplace atmosphere.