November 30, 2018

DHS to Propose Rule Changes to H-1B Cap Lottery Process

On November 30, 2018, the Department of Homeland Security (DHS) announced a notice of proposed rulemaking that would change the way the H-1B cap lottery is administered. Under this proposal, H-1B cap-subject petitioners would be required to electronically pre-register with U.S. Citizenship and Immigration (USCIS) during a designated registration period. If selected in the pre-registration lottery, petitioners would be limited to filing an H-1B petition only for the beneficiary named on the originally-selected registration. DHS has included this second requirement to “protect the integrity of this registration system.”

Another proposed change to the H-1B cap lottery is that DHS would reverse the order in which H-1B petitions are selected. Currently, the advanced degree (“U.S. Master’s Cap”) petitions are selected before the regular H-1B cap petitions and then the remaining advanced degree petitions go into the regular H-1B cap lottery. Under the new proposal, USCIS would select registrations toward the Regular H-1B cap first, and then select registrations toward the advanced degree cap. DHS believes this change will increase the number of beneficiaries with master’s or higher degrees from U.S. schools who are selected in the lottery.

The proposed rule includes a provision that “would enable USCIS to temporarily suspend the registration process during any fiscal year in which USCIS may experience technical challenges with the H-1B registration process and/or the new electronic system,” according to DHS. In practice, this means that the new rule would likely be suspended during the Fiscal Year 2020 cap lottery, which will be held in April 2019.

Additional information on the newly proposed rule may be found in the Federal Register. The public comment period will run from December 3, 2018 to January 2, 2019.

Law Offices of Brelje and Associates will continue to provide updates as we receive more information. If you have any questions about how this proposed rule change would affect you or your business, please contact our law firm.

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