The Department of Homeland Security (DHS) has posted for public inspection a final rule amending regulations governing the H-1B cap-subject petitions. The rule will be published in the Federal Register on January 31, 2019.
Effective, April 1, 2019, U.S. Citizenship and Immigration Services (USCIS) will reverse the order by which it selects H-1B petitions under the H-1B regular cap and the advanced degree exemption. USCIS will first select H-1B petitions submitted on behalf of all beneficiaries, including those that may be eligible for the advanced degree exemption. Then, USCIS will select from the remaining eligible petitions, a number projected to reach the advanced degree exemption.
Notably, after considering public feedback, USCIS will suspend the electronic registration requirement for the fiscal year 2020 H-1B cap season in order to complete user testing and ensure the system is functioning properly. Once the registration requirement is implemented, petitioners will be required to first electronically register with USCIS during a designated registration period. Then, only those whose registrations are selected will be eligible to file an H-1B cap-subject petition. The registration is expected to be implemented in time for the FY 2021 cap season.
- USCIS expects the reversal of the lottery selection process will likely increase the number of petitions selected for beneficiaries with a master's or higher degree from a U.S. institution of higher education.
- USCIS estimates an increase of up to 16% (or 5,340 workers) in the selected petitions for beneficiaries with a master's degree or higher from a U.S. institution of higher education.
Potential Future Impact
- With the future electronic registration requirement for FY 2021, USCIS expects overall cost for petitioners to be reduced, creating a more efficient and cost-effective H-1B cap petition process for the government and employers.
- USCIS will publish a notice in the Federal Register announcing the initial implementation of the registration process in advance of the FY 2021 cap season.
- Prior to implementation, USCIS will conduct outreach to ensure petitioners understand how to access and utilize the system.
- Once the electronic registration system is implemented, USCIS will announce the designated registration period at least 30 days in advance for each fiscal year.
Pryor Cashman will continue to work with our clients to prepare for the upcoming H-1B cap season, and monitor and update clients on the implementation of the electronic registration requirement.
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