2019 New H-1B Rule Favors F-1 Students

The final H-1B regulation published January 2019, prioritizes F-1 students and others who have completed a U.S. masters degree. This aspect of the rule will be in effect as of April 1, 2019, for this year’s H-1B season. However, the registration requirement will not be implemented until later.

Employers may file an H-1 petition up to six months prior to the start date of the sponsored employee. Demand has consistently been higher than the H-1B visa numbers available. H-1B visa numbers for new beneficiaries (new employees who have not had an H-1B visa number within the past six years)  are limited to 65,000 for beneficiaries with a bachelors degree or equivalent, plus an additional 20,000 visa numbers for those with US masters or higher degrees. That means there are only 85,000 total H-1B visa numbers for cap-subject cases each fiscal year. Because the new fiscal year starts on October 1st, employers must file any new, cap-subject H-1B petitions within the first five business days of April. Thus, for this year, employers have between Monday April 1st , 2019 to Friday April 5th, 2019 to file for a start date of October 1st, 2019. Filing means that the petition must be received by those dates.

USCIS then runs a lottery to determine which H-1B petitions will receive a visa number. Those petitions that do not receive a visa number are returned to the employers. Receiving a visa number does not mean that the petition will be approved. It just means that USCIS will take the filing fees, review the petition and adjudicate it. Thus, those receiving visa numbers may still have their H-1B petitions denied.

In the final rule, DHS changes the procedure by which H-1B cap-subject petitions are selected in the lottery in order to favor F-1 students and others who hold a masters or higher degree from a U.S. college or university. Thus, employers who already employ an F-1 student (assuming he or she has a US advanced degree) on OPT have a higher chance of obtaining an H-1B visa number for their employee, than an employer sponsoring an employee abroad whose education was also abroad.  The final rule reverses the selection process that USCIS used in the past. Now, USCIS will randomly select H-1B petitions for the regular cap first (the 65,000 visa numbers that may go to any beneficiary with at least a bachelor’s degree or equivalent, including foreign degrees, and also combining education and experience). After filling up the 65,000 H-1B visa numbers, USCIS will then select from among the remaining pool of petitions the additional 20,000 H-1B petitions that are reserved for beneficiaries with a US masters degree or higher (say, F-1 students with a PhD, MD or JD from a US university). USCIS estimates that this new procedure will result in an increase of 16% in the proportion of H-1B visa holders with an advanced US degree.

DHS believes that this rule is merit-based, and is consistent with the policy of “Buy American and Hire American” (BAHA). The rule does not make it easier to hire foreign nationals. Because the rule is expected to result in a greater number of beneficiaries with a US masters or higher degree, it is in line with the executive order’s goal to “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries”.

DHS will also implement a new registration system for employers, however, this is suspended for this FY2020 H-1B cap season. DHS needs to perform user testing of the new online system. DHS anticipates starting the registration system in time for the FY2021 H-1B cap season. All employers must file a registration for each potential employee, and then wait to see if USCIS selects it before filing an H-1B petition. If USCIS does not pick the employer’s registration, the employer is not allowed to file an H-1B petition on behalf of that beneficiary.

Each fiscal year, USCIS will announce the start date of the registration period on its web site at least 30 days prior to the start of the registration period. The registration period will be for a minimum of 14 calendar days.  The registration period will begin at least 14 days before the first day of petition filing and last at least 14 days. So, at least for two weeks. USCIS will then determine the end of the registration period, depending upon how many registrations it receives. USCIS may continue the registration period past two weeks, or reopen the registration period for an additional period of time.

Each registration must include the beneficiary’s full name, date of birth, country of birth, country of citizenship, gender and passport number. SEVIS information is not required. USCIS may decide later on to include additional information required for registration. USCIS will check the system for duplicate registrations. Establishing eligibility is not required to file a registration. The registration period is not intended to replace the adjudication process or to assess whether the beneficiary is eligible for the position.

The required information is intended only to identify the beneficiary and limit potential fraud and abuse of the system. DHS is considering ways to allow employers to correct typos in their registrations. Employers will be able to edit a registration until it is submitted. Employers may also delete a registration and re-submit it prior to the close of the registration period.

DHS regulations already forbid the filing of multiple H-1B cap subject petitions by related corporate entities for the same beneficiary, unless there is a legitimate business need.

USCIS will then select sufficient registrations towards the H-1B cap, eliminate duplicate registrations, identify the employer and proposed employee, and to match registrations with subsequently filed H-1B petitions.

In sum, employers and foreign professional may proceed as usual in preparing and filing H-1B petitions this fiscal year. Since the registration process is postponed, the only procedure changing is USCIS’s manner of choosing which H-1B cap petitions receive visa numbers, so that a greater proportion will go to beneficiaries who are F-1 students with advanced degrees.

Copyright 2019 © Heidi J. Meyers, all rights reserved.


You can read the full page for these different  types of visas by click on one of the items on the right.

Major areas of concentration are the following:

  • H-1B  (Professionals);
  • H-1B1 (Professionals from Chile and  Singapore);
  • L-1     (Managers, Executives and Specialized Knowledge Workers) ;
  • E        (Investors and Traders) ;
  • R        (Religious Workers) ;
  • P        (Artists and Entertainers) ;
  • Labor Certifications;
  • National Interest Waivers;
  • Aliens of Extraordinary Ability;
  • Health Care Workers;
  • Student Visas;
  • TN Visas; Business; Federal Court;
  • Greencards and citizenship;
  • Professors and Researchers;
  • Adoptions;
  • Family and Marriage Petitions ;
  • Asylum, Deportation and Cancellation of Removal.


The Law Office of Heidi J Meyers is a full-service immigration law firm, established in 1997. In addition to H-1B petitions and employment-based immigration, our office offers a wide array of immigration services, including: E-1 (treaty traders), E-2 (treaty investors), L-1A (managerial and executive transferees) and L-1B (specialized knowledge workers), cap-exempt H-1Bs to work at non-profit universities or their affiliates, R visas (religious workers), family petitions, marriage petitions, F-1 (student visas), naturalization, asylum, deportation and removal proceedings, waivers of deportability, waivers of unlawful presence, and DACA (Deferred Action of Childhood Arrivals).

Ms. Meyers has been practicing U.S. immigration law since 1995, and has had her own firm since 1997. We speak Cantonese, French, Fulani, Mandarin, Punjabi and Spanish and represent people of all religions and nationalities, and from all walks of life.

Our office is located at:
The Woolworth Building
233 Broadway, Suite 801
New York, NY 10279

Our phone number is (212) 791-4007. We are conveniently located near the World Trade Center PATH station, the A, C, E trains at Chamber Street/WTC, the 2 and 3 trains at Park Place, the R and W at City Hall, and the 4, 5, 6, J and Z trains at Brooklyn Bridge-City Hall.

USCIS has recently come out with the final rule on F-1 students with STEM degrees.  STEM students will now be eligible for a 24-month extension of their OPT, provided that their employer participates in the E-Verify program. The rule requires employers to implement formal training programs, and adds wage and other protections for STEM students and U.S. workers.  DHS will now conduct site visits of the employers of F-1 students on OPT.  The final rule also codifies cap-gap relief for F-1 students with a timely-filed H-1B petition and request for change of status.

The U.S. Supreme Court may make a decision as early as this June 2016 on the Texas v. United States lawsuit regarding the president’s executive action and power to create the expanded DACA and DAPA programs. Should the U.S. Supreme Court rule in favor of the Obama administration and immigrants, more people will be eligible for Deferred Action for Childhood Arrivals (DACA). Currently undocumented people who arrived in the US before turning 16 years old and have been present since January 1, 2010 (rather than since June 15, 2007), are now eligible for DACA.  There also will be no upper age limit on who can apply for DACA. Additionally, parents of U.S. citizens and permanent residents who have been present in the US since January 1, 2010, will be eligible to request deferred action and work authorization, provided they pass background checks;