DHS Announces Final Rule Modifying H-1B Cap Filing and Selection Processes; Pre-Registration Requirement Postponed Until Next Year

The Department of Homeland Security (DHS) announced today that it will publish a final rule in tomorrow’s Federal Register amending regulations relating to H-1B cap petitions. The changes will reverse the process used by USCIS to select cases for the cap. The changes will also require employers to first electronically register its H-1B cap cases with USCIS. The final rule will go into effect on April 1, 2019, although the electronic registration requirement will be suspended for the upcoming H-1B cap filing season (FY2020), which starts on April 1, 2019.

The new H-1B cap selection process will impact this year’s H-1B cap filings

Under the new rule, USCIS will first select enough cases to meet the 65,000 regular cap by selecting from all cases received during the filing period, including both regular cases and advanced degree cases. Following this selection, USCIS will select enough cases from the remaining eligible advanced degree cases to meet the 20,000 advanced degree cap.

In previous years, when USCIS received enough petitions to reach the H-1B cap, the 20,000 advanced degree cases were selected first, and then the 65,000 regular case selection followed. DHS estimates the reversal in selection order will increase the number of H-1B petitions granted to beneficiaries with a master’s degree or higher from a U.S. institution by 16%.

USCIS will begin accepting FY2020 H-1B cap petitions on April 1, 2019, and this new selection process will apply to all petitions filed this year.

The new H-1B cap registration process is suspended for this year’s H-1B cap filing period and will not become effective until next year’s filing period.

Once implemented, the new cap registration process will require employers to register cases online prior to the submission of an H-1B cap filing. USCIS would notify employers of the selected registrations, and employers would only file a full H-1B cap petition for registrations that are selected.

The pre-registration process could prove beneficial to employers, as full case preparation will only be necessary on those cases selected for processing, and employers will avoid the time, effort and cost of preparing cases not selected in the lottery. It should also significantly reduce the administrative burdens on USCIS which are associated with the current system. Specific details summarizing how the technical logistics of the pre-registration system will work have not yet been provided by DHS.

Importantly, although the electronic registration requirement is part of the final rule, it is being suspended for FY2020 H-1B cap petitions, which will be filed on April 1, 2019. This will allow time to ensure the system is tested and fully functional. USCIS will publish notice in the Federal Register in advance of the FY2021 cap season (which will begin on April 1, 2020) in which it will implement the registration requirement.

How employers should proceed

For preparation of FY2020 H-1B cap filings on April 1, 2019, it is business as usual. You should continue to work with your Ellis Porter team to prepare for the upcoming H-1B cap filing period as you have in the past, and be prepared to submit a full H-1B cap petition and supporting evidence for each beneficiary as usual.

Ellis Porter is closely monitoring the new developments and will continue to issue updates as they are available.