The Department of Homeland Security has published a much-anticipated notice of proposed rulemaking affecting the H-1B visa process. Public comments must be submitted by January 2, 2019.

DHS proposes:

• Adding a free electronic pre-registration process; and

• Changing the random selection process in a way that would likely benefit holders of U.S. master’s degrees.

The pre-registration process would involve the following:

• USCIS would provide 30 days’ notice on its website of the opening of the pre-registration period

• Pre-registration would begin no later than 14 days before April 1 of each year

• Basic information would be required for pre-registration, including the job title, the beneficiary’s name and citizenship, and whether the beneficiary has a U.S. master’s or higher degree

• After the random selection process takes place, notices of selection will be sent out

• Selection notices will indicate the filing location and the filing period

• There will be at least a 60-day post-notification filing period

• Pre-registrations will be maintained until all available H-1B visas are used and, if necessary, the pre-registration process may be reopened

• Unselected pre-registrations will not carry over to the next fiscal year

With the “Buy American, Hire American” Executive Order, President Donald Trump made it 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 proposes to invert the current random selection process through rulemaking, without eliminating random selection altogether. According to DHS, the outcome will be an estimated 16% increase in beneficiaries accepted with a U.S. master’s (or higher) degree. This would make it more difficult for companies to hire individuals into positions that only require a bachelor’s degree.

How will this work?

Instead of first conducting the U.S. master’s degree lottery and then adding any remaining U.S. master’s degree beneficiaries into the “regular” lottery, DHS will:

• First conduct the “regular” lottery for 65,000 visas with the master’s degree beneficiaries included,

• Then put the remaining U.S. master’s degree beneficiaries into a lottery for the separate 20,000 U.S. master’s degree allocation

The proposed rule notes that the pre-registration process and the change in the random selection process are severable. In other words, even if DHS does not have time to institute the pre-registration process in 2018, it still may change the selection process.