In a previous article, our office noted that the United States Citizenship and Immigration Services (USCIS) is making steps towards creating a pre-registration system for the H-1B cap selection process, as well as other changes to the entire H-1B cap process.  Here is an update.

A proposal to the Office of Management and Budget (OMB) was reviewed, received preliminary approval, and is expected to be published for public feedback in the near future.

Although the details of the proposal are confidential, features could include:

  • Initial pre-registration period for H-1B cap. Before being able to register for the H-1B cap lottery, employers would need to file a form that provides information about the company, the job offer, and the prospective foreign employee. This pre-registration would occur prior to the opening day of the cap filing season (April 1).
  • Changes to cap selection lotteries.
    • Currently, when USCIS receives H-1B caps beyond the quota, the master’s cap H-1B petitions are run through selection lotteries first until 20,000 are selected, then regular and remaining master’s cap petitions are run through the lottery until the annual H-1B quota is met.
    • USCIS may propose a change in the order of the cap lotteries so that the advanced-degree lottery is run prior to the regular cap lottery without the 20,000 limit in order to maximize the number of advanced-degree graduates selected for the H-1B cap. In other words, the master’s cap H-1B petitions alone may account for the full annual H-1B quota.
    • It is also possible that USCIS may propose that positions offering higher salaries would receive priority in the cap selection process.
  • Petition filing period. USCIS may propose that no employers submit full H-1B petitions and supporting evidence unless their cases are selected in the pre-registration process. Cases that are selected would receive a brief petition filing period (possibly 30 days) to submit a full H-1B petition and supporting evidence.
  • Waiting list. USCIS may propose the creation of a waiting list. This would enable additional cases to be filed if the quota is not reached due to rejections or withdrawals of petitions, or in the event that an employer decides to file a petition after their pre-registration was selected.

These proposals can only be implemented after USCIS has considered public feedback (of 60 days), finalized the regulation, and received final OMB approval. Due to the OMB’s quick preliminary approval of the proposal, it is entirely possible that these changes may go into effect for the FY 2020 H-1B cap season beginning on April 1, 2019.  Unfortunately, we will not know until February 2019 at the earliest, and possibly the final rule may not be implemented until March 2019.

Our offices will keep you apprised of any further information about the H-1B cap proposals. Please do not hesitate to contact us if you have any questions.