United States: Massive Changes To H-1B System Proposed For 2019

Last Updated: December 27 2018
Article by Davis C. Bae

The Department of Homeland Security (DHS) recently proposed a new rule that could dramatically change the way the H-1B application process works. The rule would establish an electronic pre-registration system and run the annual lottery based on the pre-registrations rather than requiring employers to file entire H-1B applications. The DHS is also considering changing the way it conducts the lottery to improve the odds of those with graduate degrees from U.S. universities. While U.S. Citizenship and Immigration Services (USCIS) is providing 30 days for public comment, the agency is attempting to fast-track the process to have the system in place for the upcoming H-1B application period, which is set to begin in April 2019.

While these proposed rule changes have the potential to save employers considerable time and money, there are major concerns about whether loopholes could exist to manipulate the proposed system. In addition, there are questions as to whether the DHS would exceed its administrative authority in adopting such changes. These issues, along with typical administrative red tape, could mean that the revised registration system may not be in place in time for the April 2019 filing season. However, employers should make themselves aware of these potential changes in the event they are adopted in the near future.

Proposed Pre-Lottery Registration

The proposed rule changes, announced on November 30, would impose a new requirement for H-1B petitioners to initially electronically register with USCIS during a designated registration period. USCIS would conduct the annual H-1B lottery from the pool of timely filed pre-registrants instead of requiring would-be petitioners to submit complete petitions.

Under the current system, 65,000 H-1Bs are available each year under the annual quota (not including petitioners exempt from the cap under various categories). An additional 20,000 are available to graduates of U.S. graduate degree programs. Petitioners submit completed applications during the first week in April since petitions can be accepted up to 180 days in advance and the annual allotment of visas becomes available on October 1 each year (the first day of the federal fiscal year). Those petitions that are selected are then adjudicated and those not accepted are returned to the petitioner (along with the filing fees).

USCIS is also proposing to change the way it conducts the lottery. There are currently two pools of applicants: regular H-1B applicants who are eligible for 65,000 H-1B visas allocated annually, and graduates of U.S. master degree programs who are additionally eligible for a separate pool of 20,000 H-1Bs. Currently, USCIS puts the masters cap applicants through a lottery for the 20,000 and then conducts the general lottery which would include individuals not selected in the masters cap lottery. USCIS seeks to flip this order and require the general lottery first, putting all masters cap-eligible individuals through that system, and then process unselected eligible people through the master cap. The idea is that this system will increase the overall number of people with U.S. masters degrees and higher receiving H-1Bs.

It is important to note that the DHS has not revealed the inner-workings of the registration system so we cannot see the actual mechanics. As for what will be required to register, the DHS says only basic information regarding the petitioner and the beneficiary would be required, including, but not limited to: the employer’s name, employer ID number, and mailing address; the employer’s authorized representative’s name, job title, and contact information; the 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, if applicable (and possibly submitting an electronic G-28); and any additional basic information requested by the registration system or USCIS. Petitioners would not have to submit a Labor Condition Application (LCA) in advance. They would need to check an attestation regarding the truthfulness and accuracy of the information and whether the petitioner intends to employ the beneficiary consistent with the registration.

During the registration period, if more registrations are received than available slots, USCIS would conduct a computer-selected random lottery of registrations received. The number selected will be determined in the same manner as is currently implemented. The main difference will be that the order for the two lotteries will be reversed from the current system, with the regular lottery happening first and the masters cap lottery second. Those not selected would be kept in reserve.

Proposed Post-Selection Process

If the rule changes are adopted, petitioners selected in the pre-registration lottery would receive a notice of eligibility to file an H-1B petition with information on the place to file and time period required for filing. No substitution of beneficiaries would be permitted. USCIS may also require petitioners submit copies of the registration information with the Form I-129 in order to verify the registration.

Once selected, DHS proposes that petitioners would have at least 60 days to properly file an H-1B petition for the named beneficiary. USCIS may choose to stagger the filing periods (for example, between April 1 and  May 31, between May 1 and June 30, etc.) in the selection notice and provide periods of longer than 60 days if necessary to accommodate processing backlogs or other operational needs. Failure to file within the prescribed filing period would result in a rejection or denial, and the petitioner would forego eligibility to file based on that selection notice. By defining the filing windows and offering a 60 day window, applicants would also be able to obtain an LCA with sufficient time. DHS is proposing to amend the rule allowing filing up to 180 days in advance to accommodate this new system.

What Impact Might Employers Expect?

It is important to note that implementation of these new rules would not increase the total number of visas eligible under the quota. If the masters cap and the general cap selection order is reversed, however, this change could favor technology companies because of the general larger hiring of individuals attending masters programs in the U.S.

We will soon know whether the new rules will be adopted and put into place for 2019. Because of the technical complications of the program implementation and the potential litigation, however, you must prepare for two potential scenarios: one where the changes are adopted in advance of the April 2019 filing date, and one where the status quo will be in effect for at least another year. We generally recommend that you plan on initiating matters right at the turn of the New Year as if the current system will remain in place to address all the filings before the April 2019 filing requirement.

However, even if the new system is put into place, this preparation would be valuable to all your applicants as they have a high likelihood of being selected either this year or in future years. If your cases are not initiated in a timely manner, it could cause major concerns for the individuals who will be very interested in the progress of their cases. This is especially true of cases where the H-1B qualifications are not clear.

At this point, there is no reason to expect a change to issues associated with travel after filing or other elements of processing after filing. Based upon the past two years, it is very possible that Premium Processing will be suspended again for H-1B cap cases. Also, we can expect USCIS to come up with new basis for Requests for Evidence (RFE).  

If the proposed rules are held up due to litigation or administrative concerns, the government will suspend the program for this coming year and proposed using the system at a later date. If this happens, USCIS will make an announcement on its website and inform readers of the time-frame for filing a regular H-1B petition. However, the agency would still run the lotteries for filed petitions in the way described in this proposed rule (regular first, then masters). The DHS may finalize the reversal of the lottery order as a final rule on a separate timetable from the pre-registration portion of the rule and is seeking comments on this idea.


The takeaway for now is that nothing has changed for employers in terms of process and expectation. News is sure to come in the upcoming months, however, which could change this analysis. For now, we recommend that employers consult with their immigration counsel and provide some limited guidance to managers and individuals who will have H-1B cap cases.    

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions