USCIS Sends H-1B Lottery Reform Rule to OMB for Review

Ulmer & Berne LLP

U.S. Citizenship and Immigration Services (USCIS) sent a proposed H-1B registration rule to the Office of Management and Budget for review, signaling that it plans to move quickly to implement its plan to reform the so-called “H-1B Lottery” and suggesting the new rule may be in place in time for the 2019 filing season that begins on April 1.

The H-1B visa permits U.S. employers to temporarily employ foreign workers in specialty occupations. The H-1B lottery is the result of the congressionally mandated 85,000 annual limit on H-1B visas. The law caps the number of H-1B visas to 65,000, plus an additional 20,000 visas for foreign nationals who hold masters or higher degrees from American universities.

Since the number of cap-subject H-1B petitions filed each year typically far exceeds the number of available slots, USCIS runs an H-1B Lottery to select which H-1B petitions will fall within the statutory H-1B cap for the upcoming fiscal year that begins on October 1, 2019. Since H-1B petitions may be filed no earlier than 180 days in advance of the October 1 start date, most cap-subject H-1B petitions are filed on or shortly after April 1 each year.

The proposed rule would change the way employers file cap-subject H-1B petitions. Before filing a cap-subject petition, employers seeking to petition on behalf of a foreign national would be required to electronically file a registration form with USCIS. Only employers for those foreign nationals selected by lottery would be permitted to file cap-subject H-1B petitions for the upcoming fiscal year. Employers would then be required to file on behalf of selected H-1B foreign nationals during a 60-day petition filing period to be announced by USCIS.

The proposed rule would also change the order in which H-1B registrations are selected. During “regular cap selection,” USCIS would consider all properly submitted H-1B registrations, including those for foreign nationals who have earned masters or higher degrees from U.S. schools. Once USCIS determines the 65,000 cap has been met, the agency would then begin “advance degree exemption selection,” arguably increasing the overall selection chances for candidates who have earned advanced degrees from American universities.

Ulmer’s immigration team is monitoring these developments closely and will update this alert as matters progress. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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