Major revisions to procedures have been proposed but is it too late to implement for April 2019?

On November 30, 2018, the Department of Homeland Security (DHS) published a notice of proposed rulemaking that would require US employers to electronically pre-register with U.S. Citizenship and Immigration Services (USCIS) before an H-1B petition is filed. Under the proposed rule, USCIS would also reverse the order of selection in the lottery, likely increasing the number of applicants with a US advanced degree to be selected for an H-1B cap number.

The H-1B visa category is a temporary United States work status, valid for an initial period of up to three-years.  It may be extended to a maximum of six years, with limited exceptions. To qualify, a foreign national must seek to perform services in a “specialty occupation” for a U.S. employer.  “Specialty occupation” is generally defined as one that requires the attainment of at least a bachelor’s degree in a specific field (or its equivalent), as a minimum requirement for entry into that occupation.

Luck-based Selection Lottery

The first 5 business days of April have become H-1B Cap Filing Season.  In the past few years, the annual quota of 85,000 new H-1B visas was exhausted by the end of the 5-day filing window: 190,000 petitions were filed in 2018 and 198,000 in 2017.  The annual quota includes 20,000 set aside for foreign workers who have completed an advanced degree at a U.S. non-profit university.

USCIS conducts a random, luck-based computer-generated lottery of all petitions submitted in the first 5 business days to select the petitions that will be considered for approval.

Proposed Registration Process

USCIS’s proposal includes the following elements:

  1. USCIS announces a 14 day registration period before the first filing day in the fiscal year (April 1st);
  2. The public is provided 30 days notice before the registration period begins;
  3. US Employers submit registrations, including basic information about the employer and the H-1B applicant;
  4. Information may include:
    1. Employer name, FEIN (Federal Employer ID Number), mailing address
    2. Employer representative: name, title and contact information
    3. H-1B applicant: name, date of birth, country of birth, country of citizenship, gender and passport number
    4. H-1B applicant: US Master’s or higher degree has been obtained
    5. Employer attorney: name, title and contact information (if applicable)
  5. US employer must attest that the employer intends to employ the H-1B applicant
  6. US employers may file only one registration per individual H-1B applicant
  7. If the number of registrations is sufficient, a random computer-generated lottery will be held
  8. USCIS will notify US employers of selection and provide visa petition filing information including filing location and a designated 60-day filing period
  9. Employers will not be able to substitute beneficiaries. Applications will only be accepted for the H-1B applicant named in the selected registration
  10. Unselected registrations will be held in reserve, in case an additional registration period is needed to use all available H-1B numbers for the fiscal year.

Proposed Changes to Sequence of Lottery Selection Process

Currently, in years when a lottery is required, the order of selection is Master’s cap first, then all others. The proposed rule would reverse the selection order, and count ALL registrations or petitions first, then select registrations for the advanced degree exemption second.

This would increase the chances that H-1B applicants with a master’s or higher degree from a U.S. institution of higher education would be selected.

What does all this mean for you?

Realistically, there is very little time between now and April 1, 2019 (first day of FY2020 H-1B filings) to finalize and implement the proposed changes.

The proposed rule includes a provision that allows USCIS to waive the registration requirement if USCIS experiences “technical challenges” with the registration process or the new electronic system.  If USCIS chooses to forgo the registration requirement, the lottery selection changes would be implemented now.  Full petitions would be required, as in years past.

USCIS has been actively working to develop and test the electronic registration system.  If the rule is finalized soon, but there is insufficient time to implement the registration system in 2019, USCIS would likely suspend the registration requirement for this coming year.

It is likely that this year’s H-1B cap season will play out like cap seasons of years past.  We can look forward to at least one more year of a very busy first week of April, filing full petitions for selection in the H-1B lottery.

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