Today, the Department of Homeland Security (DHS) posted the Final Rule. The final rule will amend the regulations governing H-1B cap-subject petitions, including those that may be eligible for the advanced degree exemption. The final rule reverses the order by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, and it introduces an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions.
Earlier in January Adhikari Law PLLC, an immigration law firm in Greater Washington DC region serving all fifty States, had supported the USCIS’ proposed rule on the H-1B visa program. The firm’s Managing Attorney, Niranjan Adhikari, wrote to the Chief of Regulatory Coordination Division, Office of Policy and Strategy at USCIS, Ms. Samantha Deshommes, giving his support to the proposed rule and provided some suggestions. Mr. Adhikari maintained that the current lottery system is not scientific and requires a reform, and argued that the proposed rule including the change in lottery process and the pre-registration process should be implemented soon.
USCIS issued a news release on Jan 30, 2019 stating that the rule will be published in the Federal Register on Jan. 31, and will go into effect on April 1, though the electronic registration requirement will be suspended for the fiscal year (FY) 2020 cap season.
USCIS has said the U.S. employers seeking to employ foreign workers with a U.S. master’s or higher degree will have a greater chance of selection in the H-1B lottery in years of excess demand for new H-1B visas.
Effective April 1, 2019 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. institution of higher education to be selected under the H-1B numerical allocations. Specifically, the change will result in an estimated 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 begin accepting H-1B cap petitions for FY 2020 on April 1, 2019. The reverse selection order will apply to petitions filed for the FY 2020 H-1B cap season. Petitioners may file an H-1B petition no more than six months before the employment start date requested for the beneficiary. USCIS will provide H-1B cap filing instruction on uscis.gov in advance of the filing season.
After considering public feedback, 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.
Additionally, 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 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.
(Last updated Feb 11, 2019.)
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Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice.