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

The Department of Homeland Security (DHS) released a final rule that revises regulations governing the selection of H‑1B petitions filed under the H‑1B cap. This new electronic, pre-registration process will be suspended for the FY2020 H‑1B cap filing season, which is April 1, 2019. The final rule becomes effective on April 1, 2019, but will be applied to next year’s lottery.

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.