The US Department of Homeland Security published a final rule that makes sweeping changes to the H-1B lottery process by requiring employers who file H-1B cap subject petitions to preregister. The new rule also prioritizes petitions for beneficiaries who have a Master’s degree or higher. The rule will go into effect April 1st, though the electronic registration requirement will be suspended for the fiscal year (FY) 2020 cap season.
The US Citizenship and Immigration Services (USCIS) announced that as of Monday, January 28, 2019, its premium processing services will resume for all cap subject cases filed for fiscal year 2019. The premium processing option requires an additional fee and ensures that the government will take action on the petition within 15 business days. Premium processing for H-1B cap petitions was suspended on April 2, 2018, the first day of filing season for the current fiscal year and has remained unavailable since this date. Please note: the resumption only applies to cap subject cases and premium processing remains suspended for all other H-1B petitions subject to the suspension. H-1B extensions filed by an employer requesting a “continuation of previously approved employment without change with the same employer” were never subject to the suspension and remain eligible for premium processing.
On Monday, December 3, DHS proposed a rule, which would eliminate the current requirement that employers file cap-subject H-1B petitions during the first week of April. Though this is a proposed rule, it seems they are eager to implement the new system in 2019 as they have limited the comment period on the proposed regulation to 30 days. That said, in order for the rule to go into effect, a final rule would need to be published after the DHS has reviewed the comments submitted by the public. It is possible the rule could be finalized in time to go into effect for the upcoming H-1B lottery. However, technical issues and lawsuits that will likely be filed to block the rule may delay its implementation.
New Online Registration System
As proposed, the new system will give employers a 150-day period at least two (2) weeks prior to April 1 to submit free online registration forms (one per beneficiary), which will include the following:
1. The employer’s name, ID number and mailing address;
2. The employer’s authorized representative’s name, job title and contact information;
3. The beneficiary’s full name, date of birth, country of birth, country of citizenship, gender and passport number;
4. Whether the beneficiary has obtained a master’s or higher degree from a U.S. institution of higher education;
5. The employer’s attorney or accredited representative, if applicable; and
6. Any additional basic information requested by the USCIS.
The new online registration system will not require employers to pay a filing fee, file the Labor Condition Application (LCA) or complete an H-1B petition prior to registration.
The proposed rule also provides that the lottery for 65,000 H-1Bs will occur prior to the lottery for 20,000 H-1Bs for beneficiaries with advanced degrees from US universities. The government expects that doing so will increase the number of beneficiaries with advanced degrees in the United States who are selected for H-1B processing.
Notification to Employers and Petition Filings
Upon selection, USCIS will notify employers of which H-1B petitions are chosen in the lotteries. It is expected that employers will be given approximately 2 months to secure LCA certifications and submit H-1B petitions with proper filing fees. USCIS may have multiple filing periods so not all the H-1B petitions are submitted at the same time and could reopen the registration period if less than 85,000 H-1B petitions are approved.