DHS Confirms Changes to H-1B Lottery Process
U.S. Department of Homeland Security Confirms Changes to H-1B Cap / Lottery Process
The Department of Homeland Security (DHS) issued a final rule today which amends regulations governing H-1B cap-subject petitions. The Final Rule will be published in the Federal Register on January 31, 2019.
WHAT WILL CHANGE?
- U.S. Citizenship and Immigration Services (USCIS) will reverse the order by which it selects H-1B petitions under the H-1B regular cap and the advanced degree exemption
Effective April 1, USCIS will first select H-1B petitions (or registrations, once the registration requirement is implemented) submitted on behalf of all beneficiaries, including those that may be eligible for the advanced degree exemption. USCIS will then select from the remaining eligible petitions a number projected to reach the advanced degree exemption. Changing the order in which USCIS counts these allocations will likely increase the number of petitions for beneficiaries with a master’s or higher degree from a U.S. university to be selected. Specifically, the change is estimated to result in an increase of up to 16% (or 5,340 workers) in the number of selected petitions for H-1B beneficiaries with a master’s degree or higher from a U.S. institution of higher education.
This change will go into effect on April 1, 2019.
- USCIS will introduce an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions
USCIS will be suspending the electronic registration requirement for the FY 2020 cap season to complete user testing and ensure the system and process are fully functional. Once implemented, the electronic registration requirement will require petitioners seeking to file H-1B cap petitions, including those that may be eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period. Only those whose registrations are selected will be eligible to file an H-1B cap-subject petition.
The electronic registration requirement will be suspended for the fiscal year (FY) 2020 cap season. That is, it will not apply to H-1B cap cases filed in April of 2019.
USCIS expects that the electronic registration requirement, once implemented, will reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process for USCIS and petitioners. The registration process may also reflect changes in the criteria for H-1B eligibility, mirroring the Administration’s 2017 “Buy American, Hire American Executive Order,” which directed reforms to the H-1B program to ensure visas are awarded to the most-skilled or highest-paid beneficiaries.
USCIS will publish a notice in the Federal Register to announce the initial implementation of the H-1B registration process in advance of the cap season in which it will implement the requirement. Prior to implementation, USCIS has advised it will conduct outreach to ensure petitioners understand how to access and use the system. Once implemented, USCIS will announce the designated electronic registration period at least 30 days in advance for each fiscal year it is required.
WHAT WILL NOT CHANGE?
USCIS will begin accepting H-1B cap petitions for FY2020 on April 1, 2019. For selected and approved petitions, employment pursuant to H-1B status may begin no earlier than October 1, 2019. Fiscal Year 2020 runs from October 1, 2019 through September 30, 2020.
As in the past, if the number of H-1B petitions filed exceeds the statutory limit, all petitions received during the first 5 business days that filing is permissible (Monday, April 1 through Friday, April 5) will be entered into the lottery. Those with a graduate degree (Master’s degree or higher) from a U.S. university will be entered first. There will be no difference / advantage for petitions filed on Day 1 versus Day 5 in terms of lottery selection.
Should you have any questions regarding the above, please do not hesitate to contact your LAC attorney.