On December 3, 2018, USCIS proposed a rule removing the current requirement for U.S. employers to file cap-subject H-1B petitions commencing April 1 each year.

What is changing?

USCIS plans to introduce a new online registration system, which would become effective in 2019 and would require that employers file an online registration form at least two weeks in advance of the April 1 traditional filing date and would include the following information:

• The employer's name, tax ID number and mailing address;
• The employer's authorized representative's name, job title and contact information;
• The foreign beneficiary's full name, date of birth, country of birth, country of citizenship, gender and passport number;
• Whether the beneficiary has obtained a master's or higher degree from a U.S. institution of higher education;
• The employer's attorney or accredited representative, as applicable, and
• Any additional basic information that USCIS might request.

The proposed regulations would not require that the employer pay an initial filing fee or file a Labor Condition Application (LCA) prior to the H-1B lottery selection. In essence, the employer first enters the lottery, and thereafter after selection, has a two month period, if selected, to file the LCA and the H-1B petition.

Why is this changing?

While the lottery system will still result in the issuance of 65,000 petitions for beneficiaries with bachelor's degrees and 20,000 with U.S. master's degrees, USCIS estimates that by first selecting the cases for those foreign nationals holding bachelor's degrees, and thereafter choosing master's cap H-1B cases, it would increase the number of H-1B beneficiaries with advanced degrees in the United States by approximately 16 percent, about 5,430 petitions. The aim of the administration is to conform to the presidential order "Buy American, Hire American" and to hire the "best and the brightest."

USCIS also indicated in its regulation that it might have multiple filing periods so that not all H-1B petitions are submitted at the same time and that it could also reopen the registration period if less than 85,000 petitions are approved. It further confirmed its current policy that if one employer files multiple petitions for the same individual, they will remove that individual for consideration for H-1B cap.

Will this rule go into effect in 2019?

The rule that appeared in the Federal Register on December 3, 2018 has a 30-day comment period, which signifies that USCIS wishes to implement the new online system in 2019. But this may not necessarily happen for a variety of reasons, so we expect that USCIS might have to wait until 2020 to implement the new process.

Whether the policy goes into effect in 2019 or 2020, it is advisable for employers to begin the H-1B process and consider which foreign national employees it may wish to sponsor for H-1B visa petition no later than early February 2019.