The Department of Homeland Security "Announces Final Rule for a More Effective and Efficient H-1B Visa Program" which will go into effect on April 1, 2019

Posted By USI Law || 30-Jan-2019

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.

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