On December 3, 2018, U.S. Citizenship and Immigration Services (USCIS) published a proposed rule to modify the H-1B cap-subject petition filing process for the upcoming FY2020 H-1B cap. The proposed regulation would create a registration requirement for cap-subject H-1B petitions and would also provide that the “regular” cap lottery be run before the advanced degree (“Master’s”) cap lottery, so as to increase the number of H-1B visas allocated to individuals holding U.S. advanced degrees. Publication of the rule is now followed by a 30-day comment period, open until January 2, 2019, during which period the public may provide feedback to USCIS on the proposal. USCIS hopes to implement the new registration requirement for the upcoming FY2020 H-1B cap program, though it is uncertain whether the required regulatory process and technical steps can be completed in time.
Proposed Registration Requirement
Timing Issues and Impact on Employers
USCIS indicates that it would like to implement these rule changes for the upcoming FY2020 H-1B cap season. However, timing will be a significant challenge.
USCIS must consider all comments received in response to this proposal through January 2, 2019. USCIS must then publish an implementing regulation that contemplates these comments. If comments are numerous, as expected, it will take additional time for USCIS to review, analyze, and refine the regulation as needed. Additionally, in the proposed regulation USCIS acknowledged that other factors may result in the registration requirement being postponed, including technological problems related to creating and operating the online registration database.
Therefore, USCIS may ultimately require employers to prepare and file H-1B cap petitions for FY2020 on April 1, consistent with historical practice, instead of utilizing the proposed streamlined registration process. If USCIS defers the registration requirement to FY2021, USCIS will nonetheless conduct the H-1B cap lotteries in the proposed reverse order, as outlined above, in an effort to allocate more visas to advanced-degree holders.
Gibney is closely monitoring the proposed rule, identifying issues and considering responsive comments, and planning H-1B cap strategies to meet these new challenges. If you have questions concerning the proposed rule, or if you would like assistance in submitting a comment on the rule, please contact your designated Gibney representative or email firstname.lastname@example.org.
The general information provided herein is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.