DHS Publishes Final Rule Amending the H-1B Cap Filing Process

On January 30, 2019, the U.S. Department of Homeland Security (DHS) published a final rule that changes the process by which petitioning employers are to file H-1B Cap Subject petitions moving forward. We previously discussed the substance and impact of these proposed rules in our previous post. Under the final regulation, employers will be required to electronically register with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period which will last at least 14 calendar days and begin at least 14 calendar days before the earliest date H-1B Cap petitions can be filed for a given fiscal year (FY), which is always the first business day in April. Employers will be required to electronically submit a separate registration for each beneficiary (employee) being sponsored and each beneficiary must be named. The employer can only submit one registration per beneficiary. If an employer's registration has been selected in the random computer-generated lottery process, they will then have at least 90 days to file the H-1B petition with USCIS. Although the rule becomes effective on April 1, 2019, DHS has suspended implementation of the new electronic registration process for FY2020. Therefore, this year's H-1B cap season will proceed as it has in year's past. It is expected that FY2021 will be the first time the electronic pre-registration process is implemented.

The final rule also reverses the order in which petitions are selected in the lottery. USCIS will first run the “standard” H-1B Cap lottery from amongst both bachelor's and master's cap filings to determine the 65,000 petitions selected for review. Once a sufficient number of applicants have been selected for the standard cap, USCIS will then select applicants towards the 20,000 advanced degree exemption. It is expected that this change should increase by up to 16% the number of beneficiaries with master's or higher degrees from U.S. universities selected in the lottery process. Note that this change to the H-1B selection process will be implemented for FY2020, which is good news for those beneficiaries who qualify for the advanced degree exemption.