1.31.19

As we previously reported, the U.S. Citizenship and Immigration Services issued proposed regulations in December that would change the way that H-1B cap petitions were filed and selected.

In general, the agency proposed to require employers to pre-register electronically, and for the registration to be selected by the USCIS, before the employers could file H-1B cap petitions. In addition, the agency proposed to change the method of selection, with the goal of selecting more Advanced Degree professionals.

No pre-registration required this year

Today, the USCIS published its final regulations in the Federal Register. The agency agreed with public comments saying that there was not enough time to implement and test the pre-filing registration requirement in time for the Fiscal Year 2020 H-1B cap filing season, which begins on April 1, 2019.

Therefore, the U.S. Department of Homeland Security announced yesterday that the electronic registration requirement will be suspended for the upcoming cap season. The agency did not say when pre-registration will begin but says it will publish a notice in the Federal Register before the applicable cap season begins, and 30 days before each fiscal year afterward. The DHS also says that the USCIS will conduct outreach “to ensure petitioners understand how to access and use the system.”

Selection of Advanced Degree professionals

Unlike the pre-registration requirement, the changes to the method of selection of Advanced Degree professionals will take effect on April 1 of this year. Under the current system, Advanced Degree professionals are in the pool for the 20,000 Advanced Degree Cap. Any petitions not selected are added to the pool for the roughly 65,000 Regular Cap.

Under the new rule that will take effect April 1, this order will be reversed. The Regular Cap lottery will be held first, and will include all prospective beneficiaries. Any Advanced Degree professionals who are not selected in the “Regular Cap” round will then go into the pool for the 20,000 Advanced Degree Cap.

The USCIS notes, “As a result, U.S. employers seeking to employ foreign workers with a U.S. master’s or higher degree will have a greater chance of selection in the H-1B lottery in years of excess demand for new H-1B visas.”

The USCIS predicts that the change will result in an increase of up to 16 percent– or 5,340 H-1B beneficiaries – who have “a master’s degree or higher from a U.S. institution of higher education.”

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