Today, the U.S. Department of Homeland Security issued a notice of proposed rulemaking proposing amendments that would alter the process for the filing and selection of H-1B visa petitions that are subject to the annual numerical “cap”.[1]

DHS proposes to require all H-1B petitioners intending to file petitions subject to the “cap,” including those eligible for the 20,000 U.S. advanced degree exemption, to first electronically register with U.S. Citizenship and Immigration Services (“USCIS”) during a period to be designated, using an abbreviated form. The proposed amendments will also change the order in which the regular lottery and the special lottery for beneficiaries with U.S. advanced degrees is held. 

From the total registrations, USCIS proposes to conduct a random lottery to select a number sufficient to meet the regular 65,000 annual cap, and USCIS will notify those petitioners to submit full H-1B petitions with proper filing fees. From the remaining registrations in the first lottery, USCIS will conduct a second lottery limited to those seeking one of the 20,000 cap exemptions for individuals holding U.S. advanced degrees. USCIS will notify the petitioners of those selected in this second lottery, who will then submit full H-1B petitions with filing fees for adjudication. 

DHS states that these proposed changes are intended to lessen the burden and cost of filing H-1B petitions for those which will not be selected and processed, streamline USCIS operations, and increase the chances for selection of petitions for those beneficiaries with U.S. advanced degrees, in furtherance of the Administration’s “Buy American and Hire American” Executive Order.

The proposed amendments also give USCIS the right  to delay implementation of the electronic registration process if sufficient testing has not been concluded by April 1, 2019, in which case the normal (historic) full petition filing process would proceed. Accordingly,  at this point we do not yet know which process will be in effect for this coming H-1B “cap” season. Importantly, whether or not the new electronic registration process is implemented by April 1, 2019, in this proposed rule, USCIS has indicated that it would still reverse the order of the two lotteries beginning with the next H-1B cap filing season. The proposed amendments are subject to a 30-day public comment period ending January 2, 2019.

We will provide further updates regarding this significant issue as it develops.

Footnote

[1] See Federal Register Vol. 83, No. 232, pp 62406-62447.

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