The Final Rule Includes an Electronic Registration Requirement, which will
be Suspended for the FY2020 H-1B Cap
On January 30, 2019, the Department of Homeland Security announced a final
rule “amending regulations governing H-1B cap-subject petitions.”
The Final Rule, which will be published in the Federal Register on January
31, 2019 and will go into effect on April 1, 2019, is a result of President
Trump’s “Buy American and Hire American” Executive Order,
in which President Trump directed the Department of Homeland Security
to “suggest reforms to help ensure that H-1B visas are awarded to
the most-skilled or highest-paid petition beneficiaries.”
As part of the final rule, the order in which the H-1B Cap selection process
/ lottery will be implemented will be reversed,
starting with this year’s FY2020 H-1B Cap. More specifically, the USCIS, after accepting all H-1B cap-subject petitions,
will select petitions for the 65,000 Regular Cap first until the Regular
Cap has been met, and then will select the remaining eligible Master’s
Cap cases for the 20,000 Master’s Cap (Advance Degree Exemption).
In previous years, the USCIS has selected Master’s Cap cases first
and then included all unselected Master’s Cap cases in the Regular
Cap selection. The Department of Homeland Security has estimated in its
final rule that changing the order of the selection process may result
in a 16 percent increase in the number of petitions selected in the H-1B
Cap for beneficiaries with a U.S. Master’s degree or higher.
The final rule will also implement an electronic registration requirement,
but will temporarily suspend the registration requirement for this year’s
FY2020 H-1B Cap. In the H-1B Cap seasons following this year’s FY2020 H-1B Cap,
Petitioners will be required to pre-register their beneficiaries in an
online system to be put through the selection process / lottery prior
to actually filing H-1B petitions. Based on which beneficiaries are selected
in the pre-registration, Petitioners would then be able to file H-1B petitions
for those beneficiaries. The Final Rule suggests that the registration
requirement will “lower overall costs for employers and increase
government efficiency.”
Please note that the Final Rule has not yet been published in the Federal
Register, but the Department of Homeland Security has made a public announcement
that these are the significant changes to the H-1B Visa Program that we
can expect to see in the Federal Register on January 31, 2019.
Please feel free to contact USILAW with any questions or issues that you
may have. You may reach us via telephone at +1 (202) 618 4540 or via email
at anindita@usilaw.com.