The Department of Homeland Security has published a final rule

amending regulations governing H-1B cap-subject petitions,

including those that may be eligible for the advanced degree

exemption. The final rule reverses the order by which U.S.

Citizenship and Immigration Services (USCIS) selects H-1B petitions

under the H-1B regular cap and the advanced degree exemption and

introduces an electronic registration requirement for petitioners

seeking to file H-1B cap-subject petitions. The rule is effective

April 1, 2019, although the electronic registration requirement

will be suspended for one year, USCIS said.

Starting on April 1, USCIS will first select H-1B petitions (or

registrations, once the registration requirement is implemented)

submitted on behalf of all beneficiaries, including those that may

be eligible for the advanced degree exemption. USCIS will then

select from the remaining eligible petitions a number projected to

reach the advanced degree exemption. Changing the order in which

USCIS counts these allocations will likely increase the number of

petitions for beneficiaries with a master's or higher degree

from a U.S. institution of higher education to be selected under

the H-1B numerical allocations, USCIS said. Specifically, the

agency noted, the change will result in an estimated increase of up

to 16 percent (or 5,340 workers) in the number of selected

petitions for H-1B beneficiaries with a master's degree or

higher from a U.S. institution of higher education.

USCIS will begin accepting H-1B cap petitions for fiscal year

(FY) 2020 on April 1, 2019. The reverse selection order will apply

to petitions filed for the FY 2020 H-1B cap season. Petitioners may

file an H-1B petition no more than six months before the employment

start date requested for the beneficiary. USCIS said it will

provide H-1B cap filing instructions in advance of the filing

season.

As noted above, after considering public feedback, USCIS has

suspended the electronic registration requirement for the FY 2020

cap season “to complete user testing and ensure the system and

process are fully functional.” Once implemented, the

electronic registration requirement will require petitioners

seeking to file H-1B cap petitions, including those that may be

eligible for the advanced degree exemption, to first electronically

register with USCIS during a designated registration period. Only

those whose registrations are selected will be eligible to file an

H-1B cap-subject petition. USCIS said it expects that the

electronic registration requirement, once implemented, “will

reduce overall costs for petitioners and create a more efficient

and cost-effective H-1B cap petition process for USCIS and

petitioners.”

Additionally, USCIS said it will publish a notice in the Federal

Register to announce the initial implementation of the H-1B

registration process in advance of the cap season in which it will

implement the requirement. Before implementation, USCIS “will

conduct outreach to ensure petitioners understand how to access and

use the system.” USCIS said it will announce the designated

electronic registration period at least 30 days in advance for each

fiscal year it is required.

According to reports, DHS pushed through the proposed rule to

finalization quickly. The agency had published a notice of proposed

rulemaking on December 3, 2018. Public comments were due January 2;

USCIS was not closed during the federal government shutdown because

it is funded by fees.

The Alliance of Business Immigration Lawyers recommends that

employers assess their need for H-1B employees and begin working on

their H-1B petitions now. Annual demand typically far outstrips

availability, so the visas are snapped up immediately.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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