New H-1B Proposed Rule Unlikely to be Implemented in Time for 2020 FY H-1B Season

According to a new proposed rule published December 3, 2018, petitioner employers who want to file H-1B petitions subject to the cap, as well as US masters cap cases, would first have to electronically register with USCIS during a fixed registration period. USCIS would then randomly choose from among the registered employers only as many as would meet the H-1B cap visa quotas. Thus, only employers selected through the registration process would be able to file H-1B cap-subject petitions.

Only if there were fewer employer registrations than there are visa numbers available, would any employer be allowed to file a cap-subject H-1B petition, up until the visa numbers have been used up. Given the very high demand for H-1B visa numbers, this scenario is unlikely.

Employers not selected for registration would remain in a reserve system for that fiscal year, whereby if USCIS later decides it needs to increase the number of registrations to meet the cap or advanced degree exemption, USCIS would select additional employers from those in the pool of reserves.

This means that employers will save money by not having to prepare and file large (or small) numbers of H-1B petitions without knowing ahead of time whether one or more may be lucky enough to get a visa number. Only those employers whose registration is selected wil be able to go ahead and file H-1B petitions.

Once the projected number of employer registrations towards regular H-1B cap cases is reached, USCIS would then select employer registrations eligible for the US masters degree exemption. Thus, there would be a change in the order of meeting the cap quotas. In the past, USCIS has first selected US masters degree holders towards the 20,000 exemption, and then after has selected the regular 65,000 H-1B cap subject cases. DHS believes that this change will mean that more beneficiaries with a US masters degree (or higher) will be chosen in the H-1B lottery.

DHS predicts that this new procedure will increase the number of US masters degree holders who receive H-1B visa numbers by about 16%.

The new rule is unlikely to be effective in time for the 2020FY H-1B season. As you all may know, all H-1B cap-subject petitions should be filed by the first five business days in April 2019. The notice and comment period for the new rule is open until January 2, 2019, after which DHS has to review the comments and finalize the rule. Additionally, DHS will have to create a new online system for employer registration for cap-subject H-1Bs, which may then need to be tested prior to deployment. Also, the final rule will have to be published with an effective date.

Thus, employers should go ahead with preparing their H-1B petitions for this upcoming H-1B season to be ready to file by April 1, 2019, which is a Monday.

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