On Thursday, January 31, 2019, the Department of Homeland Security (DHS) posted for public inspection a final rule that will make significant changes to the H-1B cap process. As mentioned in a previous article, the United States Citizenship and Immigration Services (USCIS) has been working on a proposal to make changes to the H-1B cap process.
What’s Changing on April 1? Reversal of Order for H-1B Cap Petition Selection Process
The regulations governing petitions filed on behalf of H-1B beneficiaries determine who may be counted toward the 65,000 visa cap established under the Immigration and Nationality Act (“H-1B regular cap”) and those with advanced degrees from U.S. institutions of higher education who are eligible for an exemption from the regular cap (“advanced degree exemption” or “H-1B master’s cap”).
Prior to this change in the H-1B cap process, USCIS first randomly selected petitions for the H-1B master’s cap. Any petitions eligible for the H-1B master’s cap that were not chosen in this first round of selection were placed with the regular cap petitions, USCIS’s second round of random selection.
The final rule, effective April 1, 2019, reverses the order of the H-1B cap selection process. First, USCIS will randomly select petitions submitted on behalf of all beneficiaries, including those eligible for the advanced degree exemption. Then, USCIS will select from the remaining petitions a number to reach the H-1B master’s cap.
This change of order is estimated to increase the number of beneficiaries with a U.S. Master’s degree that are selected for the H-1B cap by 16% (or 5,340 workers per year).
What is not changing on April 1? H-1B cap registrations
Although a part of the final rule, USCIS will not be implementing a new H-1B cap registration process on April 1, 2019, but will postpone implementation until the following fiscal year.
According to this new process, petitioners seeking to file H-1B petitions subject to the H-1B cap will need to first electronically register with USCIS during a designated registration period. USCIS will announce this initial registration period at least 30 calendar days in advance. DHS will also publish a notice in the Federal Register to announce the initial implementation of this registration process in advance of the cap season that it will be implemented.
USCIS will make selections for the H-1B cap based on this initial registration. All petitioners whose registrations are selected will then be allotted a filing period of at least 90 days to gather all the necessary documentation and properly file an H-1B cap petition. USCIS will provide filing instructions in advance of the H-1B cap season that the registration is first implemented.
Why the changes?
These changes to the H-1B cap process are consistent with President Trump’s executive order from April 18, 2017 titled “Buy American and Hire American.” In this executive order, President Trump instructed DHS to “propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of U.S. workers in the administration of our immigration system.” Specifically, the executive order instructs DHS to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”
In addition, USCIS expects an overall cost reduction for petitioners and a more efficient and cost-effective H-1B cap petition process once the electronic registration is implemented.
SW Law Group is more than happy to speak with you about questions you may have about the H-1B cap changes. Please do not hesitate to contact our office.