The Department of Homeland Security has published a final rule amending 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 introduces an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. The rule is effective April 1, 2019, although the electronic registration requirement will be suspended for one year, USCIS said.
Starting on April 1, 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, USCIS said. Specifically, the agency noted, the change will result in an estimated increase of up to 16 percent (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 fiscal year (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 said it will provide H-1B cap filing instructions in advance of the filing season.
As noted above, after considering public feedback, USCIS has suspended the electronic registration requirement for the FY 2020 cap season "to complete user testing and ensure the system and process are fully functional." Once implemented, the electronic registration requirement will require petitioners seeking to file H-1B cap petitions, including those that may be eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period. Only those whose registrations are selected will be eligible to file an H-1B cap-subject petition. USCIS said it expects that the electronic registration requirement, once implemented, "will reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process for USCIS and petitioners."
Additionally, USCIS said it 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. Before implementation, USCIS "will conduct outreach to ensure petitioners understand how to access and use the system." USCIS said it will announce the designated electronic registration period at least 30 days in advance for each fiscal year it is required.
According to reports, DHS pushed through the proposed rule to finalization quickly. The agency had published a notice of proposed rulemaking on December 3, 2018. Public comments were due January 2; USCIS was not closed during the federal government shutdown because it is funded by fees.
The Alliance of Business Immigration Lawyers recommends that employers assess their need for H-1B employees and begin working on their H-1B petitions now. Annual demand typically far outstrips availability, so the visas are snapped up immediately.
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