USCIS Announces Final Rule for H-1B Cap Petitions

31Jan
2019

USCIS Announces Final Rule for H-1B Cap Petitions

The Department of Homeland Security (DHS) announced a final rule amending regulations governing the H-1B visa program. The rule will go into effect on April 1, 2019.

The new rule introduces two important changes to the H-1B application process. First, the selection order for H-1B regular cap petitions and petitions claiming the advanced degree exemption will be reversed. This will apply to petitions filed for the FY 2020 H-1B cap season. Second, an electronic registration requirement will be instituted for H-1B applications. However, this change is suspended and will not apply in the FY 2020 H-1B cap season.

First, the new rule reverses the order in which USCIS selects H-1B petitions for the H-1B regular cap and the advanced degree exemption. Under the current system, USCIS selects petitions eligible for the advanced degree exemption first to fill the 20,000 spots available for qualifying advanced degree holders. After these spots are filled, the unselected advanced degree petitions are added to the pool of regular cap petitions, and USCIS then selects from the combined pool of eligible petitions to fill the 65,000 spots available for the regular cap. Under the new rule, USCIS will reverse this order and select petitions submitted on behalf of all beneficiaries to meet the regular cap limit (65,000) first. After filling those spots, USCIS will then select petitions for the advanced degree exemption (20,000) from the remaining eligible petitions.  This change will likely increase the total number of beneficiaries with advanced degrees (master’s or above) selected in the regular cap selection stage, because all of the advanced degree holders who would have been removed from the pool at the earlier stage under the current system will now be part of the regular cap pool under the system created by the new rule. 

Second, the new rule introduces an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. Petitioners, including those eligible for the advanced degree exemption, will be required to first electronically register with USCIS during a designated registration period to receive the right to file an H-1B cap-subject petition for the applicable fiscal year. USCIS will then select registrations in the order described above. Only petitioners whose registrations are selected will be eligible to file an H-1B petition. However, USCIS has suspended the implementation of the electronic registration requirement for the FY 2020 H-1B cap season. The currently existing procedures for submitting H-1B petitions will still be used for the upcoming H-1B cap season. USCIS will conduct user testing and ensure the electronic registration system and process are fully functional before it is implemented.

If you have any questions about the new H-1B rule, please feel free to contact our firm.

Updated 1/31/2019