DHS Proposes H-1B Pre-Registration Rule for the H-B Cap

The Department of Homeland Security (DHS) issued a notice of proposed rulemaking that would require H-1B petitioners filing H-1B cap subject petitions to file electronically with US Citizenship and Immigration Services (USCIS) during a registration period. This registration process will cover H-1B beneficiaries who may be counted under section 214(g)(1)(A) of the Immigration and Nationality Act (INA) (“H-1B regular cap”) or under section 214(g)(5)(C) of the INA (“H-1B master’s cap”). The proposed rule also reverses the current order of selection under the H-1B cap and advanced degree exemption, which will most likely result in H-1B numbers being assigned to more H-1B beneficiaries with a master’s degree or higher.

The H-1B visa is for specialty occupation or professional positions, which are defined as requiring the theoretical and practical application of specialized knowledge that at least a bachelor’s degree normally provides. There are 65,000 visa numbers made available each year, along with an additional 20,000 for those with an advanced degree from a US institution. Once more petitions are received than there are H-1B visa numbers available, USCIS conducts a random computerized lottery. In the recent past, USCIS has allowed for filing of H-1B petitions pursuant to the lottery for the first five days after April 1st.

Under the current lottery system, when both the H-1B cap and advanced degree exemption are reached within the first five days, the advanced degree exemption cases are selected prior to the petitions subject to the regular H-1B cap. The proposed rule reverses this selection and counts all petitions towards the anticipated number projected to reach the H-1B cap first. Once this cap has been reached, then USCIS would select petitions towards the advanced degree exemption. Such procedure would increase the likelihood that advanced degree exemption petitions are accorded a number. USCIS has calculated that there would be an approximate 16 percent increase in petitions based on a master’s degree or higher.

The proposed rule also allows USCIS to temporarily suspend the registration process due to technical problems with the new electronic registration system. In particular, it would allow USCIS to suspend the implementation of the H-1B registration process past the fiscal year (FY) 2020 cap season.

USCIS expects the pre-registration process to make the H-1B cap petition process more efficient and cost-effective, since the petitioner would no longer need to file a paper version of the petition before conducting the cap selection process. It is anticipated that this will reduce the wait time for notifications of H-1B cap selection, which current can take up to several months.

The public has until January 2, 2019, to comment on this proposed rulemaking.