DHS Publishes Final Regulation Governing H-1B Cap Subject Petitions

DHS Publishes Final Regulation Governing H-1B Cap Subject Petitions

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On January 31, 2019, DHS published a final rule in the Federal Register that amends the regulations governing petitions filed under the H-1B visa lottery. The final rule is effective April 1, 2019, though DHS will suspend the electronic registration requirement for this year’s H-1B cap. Details about the final regulation are outlined below under the January 30, 2019, update.

January 30, 2019

On January 30, 2019, DHS released a copy of a final rule that amends the regulations governing H-1B petitions that are filed under the H-1B cap (commonly known as the “H-1B visa lottery”) for beneficiaries counted towards the H-1B regular cap, as well as beneficiaries with advanced degrees from U.S. institutions of higher education who are eligible for an exemption from the regular cap (“advanced degree exemption”). The final rule reverses the order by which USCIS will select H-1B petitions under the H-1B regular cap and the advanced degree exemption, and adds an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. The final rule is scheduled to be published in the Federal Register on January 31, 2019 and will become effective on April 1, 2019, though DHS is suspending the electronic registration requirement for the fiscal year (FY) 2020 H-1B cap filing season. This means that H-1B cap-subject petitions filed as part of the FY2020 H-1B cap filing season, which opens on April 1, 2019, will need to be filed using the same process as in prior years, with petitioners submitting a complete H-1B petition to USCIS, together with filing fees, in order to be eligible to be considered for selection in the FY2020 H-1B visa lottery.

Electronic Registration Requirement

  • Under the final regulation, DHS is adding a registration requirement for petitioners seeking to file H-1B cap subject petitions on behalf of foreign workers, though DHS is suspending the electronic registration requirement for the upcoming FY2020 H-1B cap season to complete user testing of the registration system and to ensure the system and process are fully functional.
  • Per the final regulation, DHS anticipates the registration requirement will be implemented starting with the FY2021 H-1B cap.
  • In the future, once the electronic registration requirement is implemented, all petitioners who seek to file H-1B cap petitions which will required to first electronically register with USCIS during a designated registration period, unless the registration requirement is temporarily suspended.
  • The registration period will last a minimum of 14 calendar days and will start at least 14 calendar days before the earliest date on which H-1B cap-subject petitions may be filed for a particular fiscal year.
  • A petitioner must electronically submit a separate registration to file a petition for each beneficiary it seeks to register, and each beneficiary must be named.
  • A petitioner may only submit one registration per beneficiary in any fiscal year. If a petitioner submits more than one registration per beneficiary in the same fiscal year, all registrations filed by that petitioner relating to that beneficiary for that fiscal year will be considered invalid.
  • USCIS will notify petitioners whose registration has been selected into the visa lottery that the petitioner is eligible to file an H-1B cap-subject petition on behalf of the beneficiary named in the notice within the filing period indicated on the notice.
  • Only those petitioners whose registrations are selected will be eligible to proceed to complete and file an H-1B cap-subject petition during the associated filing period, which will be at least 90 days.
    • Note that although DHS initially proposed to stagger filing periods, such that the initial date after which petitions based on selected registrations could be filed would be spread out over time, DHS is not proceeding with staggered filing periods in its final rule.
  • USCIS will announce the start of the initial registration period on the USCIS website at least 30 calendar days prior to the commencement of the registration period.
  • In addition, DHS will publish a notice in the Federal Register to announce the implementation of the registration process in advance of the H-1B cap season in which the registration process will be implemented.
  • USCIS has indicated that it will engage in stakeholder outreach and provide training to the public on the registration system in advance of its implementation to ensure petitioners understand how to access and use the system.
  • 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.

Allocation of H-1B Cap Numbers

  • Currently, in years when the H-1B cap and the advanced degree exemption are both reached within the first five days in which H-1B cap petitions may be filed, the advanced degree exemption beneficiaries are selected before the H-1B cap beneficiaries.
  • The final rule will reverse the selection order and count all applicants towards the number projected as needed to reach the H-1B regular cap first. Once a sufficient number of applicants have been selected for the H-1B regular cap, USCIS would then select applicants towards the advanced degree exemption.
  • USCIS predicts that changing the order in which USCIS counts these allocations will likely increase the number of beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected under the H-1B numerical allocations.
  • Specifically, USCIS estimates that the change will 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.
  • USCIS will proceed with implementing this change to the H-1B cap allocation selection process for the FY2020 cap season (beginning on April 1, 2019), notwithstanding the delayed implementation of the H-1B registration requirement.

 

Source: AILA Doc. No. 18111639.

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