|U.S. Department of Homeland Security (DHS) has proposed a new rule that will significantly change how H-1B cap cases are filed and how the lottery is to be conducted. Because there are more applications than H-1B visas available each year, U.S. Citizenship and Immigration Services (USCIS) conducts an H-1B lottery every year to determine which applicants will be selected to process their H-1Bs for that year. Excluded from the cap are cases for certain exempt organizations (e.g. universities) and persons (e.g. those applying for extension and change-of-employer petitions). These cases will be unaffected by the proposed rule.
Under the proposed rule, employers will be required to register electronically with USCIS during a designated, 15-day registration period. Following lottery selection, petitioners will then be directed to file petitions for adjudication within a designated period of no less than 60 days. USCIS expects pre-registration to alleviate the burden of receiving hundreds of thousands of petitions and support documentation for cases that ultimately will not be selected in the lottery.
Reversal of Order of the Lottery
There are two lotteries that are conducted under the H-1B cap. Currently, the lottery for advanced U.S. degree holders is conducted first followed by the regular H-1B lottery. Under the proposed rule, the order of selection would be reversed. All registrations towards the regular H-1B cap will be counted. Once the registrations reach this cap, USCIS will then conduct the advanced degree lottery. USCIS believes that reversing this order will result in an estimated increase of 16% in the number of H-1B approvals for those holding advanced U.S. degrees.
When will New Rule Go into Effect?
It is unclear whether the rule will go into effect for the upcoming immigration fiscal year (i.e. filings for April 2019). The proposed rule is open for public comment until January 2, 2019, which must then be followed by consideration of the public’s comments and publication of a final rule, therefore it is unlikely that the rule will be in effect for April 2019 filings. If finalized, it will probably be implemented for April 2020 filings. Under the proposed rule, USCIS may delay the implementation of the H-1B registration process, if necessary to complete all requisite user testing and vetting of the new H-1B registration system and process.
Since filings for the 2019 H-1B cap season starts very soon in April 2019, please contact Powers Law Group with any questions about H-1B filings.