On January 30, 2019, the Department of Homeland Security announced the publication of a Final Rule making changes to the H-1B program. As E&M Mayock predicted, this year’s H-1B cap season will be the same as in seasons past. Pre-Registration will not be required. Full petitions must be filed during the first week of April 2019. A lottery will then be held to determine who will receive an H-1B number.
The Final Rule makes a procedural change in the lottery selection system. In years past, the first selection of 20,000 numbers in the lottery was made from applicants with a U.S. Master’s or higher degree (U.S. Master’s pool). Then the selection of 65,000 numbers was made from all remaining applicants, including the U.S. Master’s pool. This year, the process will be reversed.
Reversing the selection is estimated by DHS to result in a 16% increase in the number of U.S. Master’s pool applicants selected in the lottery. From a numbers perspective, the result is an increase of 5,340 U.S. Master’s pool applicants.
Although U.S. Master’s pool applicants will likely be winners as a result of this change, there are others who stand to lose the opportunity to obtain H-1B status. Many physicians and researchers have foreign professional degrees. These individuals, who provide critical services to the U.S. will have a diminished capacity to be selected under the new lottery system.
As with all “simple” changes in regulation, this provision is not without controversy. It has been widely argued by immigration advocates, that the underlying H-1B statute requires that the 20,000 Master’s pool applicants be selected before any additional numbers are selected. It remains to be seen whether litigation will snarl up the implementation of this procedural change for this year’s H-1B Cap Season.
DHS wisely chose to follow the advice proposed in many comments to the regulation regarding the electronic registration requirement. DHS has postponed implementation of the electronic registration requirement for petitioners seeking to file H-1B petitions in 2019. DHS will be working to complete user testing before rolling out the new system.
The electronic registration system finalized in the regulations adopts additional changes recommended by comments. These changes include:
- Providing 30 days notice before the 14 day registration period
- Publishing a notice in the Federal Register to announce initial implement of the registration process
- Adjusting requirements to assure F-1 foreign students will be able to maintain work authorization during the application process (known as “cap gap” protection)
- Extending the filing period to 90 days rather than the proposed 60 day filing period
- Eliminating the concept of multiple filing periods
Registrations may be submitted by Petitioners or their attorneys. Registration is intended solely to streamline the application process. It is not intended to perform any screening functions or assess eligibility for H-1B status. Therefore, only basic information, which will enable DHS to identify the beneficiary, check for duplicate submissions and match registrations to submitted petitions, will be required. This information includes:
- Employer name, FEIN (Federal Employer ID Number), mailing address
- Employer representative: name, title and contact information
- H-1B applicant: name, date of birth, country of birth, country of citizenship, gender and passport number
- H-1B applicant: US Master’s or higher degree has been obtained
- Employer attorney: name, title and contact information (if applicable)
Petitioners may only submit one registration per beneficiary. DHS is retaining the existing allowance for multiple petitioners to submit registrations for the same beneficiary. This allows an H-1B beneficiary to interview with multiple employers who each may submit a petition on his or her behalf.
Once again, full petitions will be required to participate in the 2019 H-1B Lottery. Fortunately, DHS published this Final Rule with plenty of time to prepare robust applications for submission by April 1, 2019.
As you probably have heard, the Trump Administration has enacted or proposed many new restrictions on high-skilled foreign nationals, which have increased the number of Requests for Evidence (RFEs) and denials for H-1B petitions. Each year the bar is raised for what is expected by USCIS for approval of H-1B Petitions. New mine fields are created that are best navigated by an experienced attorney who has successfully overcome the obstacles placed by USCIS.
E&M Mayock predicted that DHS would postpone implementation of the registration component of the proposed rule and is already well into managing the 2019 H-1B Cap Season, as we have in years past. We are proud of our success in obtaining approvals for our H-1B petitions and are braced for the challenges that will undoubtedly arise in the 2019 H-1B Cap Season.