January 30, 2019

DHS Publishes Final Rule to Change the H-1B Cap Lottery Process

On January 30, 2019, DHS announced a final rule that would change the way the H-1B cap lottery is administered. This final rule makes two primary changes to the H-1B lottery process.

First, the rule reverses the order that USCIS will use to select H-1B petitions during the lottery. Currently, petitions for candidates with a US Master’s degree for higher are selected before the regular H-1B cap petitions. Under the new final rule, USCIS will select petitions under the regular H-1B cap first, and then select from the remaining petitions those that will be selected as part of the US advanced degree cap. USCIS estimates that this change will result in a 16% increase in the likelihood that an H-1B beneficiary with a master’s degree or higher from a U.S. university will be selected.

Second, the final rule will implement an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. Importantly, USCIS is suspending this new electronic registration requirement for Fiscal Year 2020 so that the agency may complete user testing on the registration system to ensure it is fully functional. Once implemented, petitioners who want to file an H-1B cap petition will need to electronically register with USCIS during a designated period. When the process is implemented, only petitions whose registrations have been selected will be able to file an H-1B cap-subject petition with USCIS.

The final rule will be published in the Federal Register on January 31, 2019. If you have questions about how the final rule could impact your petition, please contact our office today.

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