USCIS Publishes Proposed Changes to H-1B Cap Lottery Selection Process

December 4, 2018

Today, the U.S. Citizenship and Immigration Services ("USCIS") published a proposed rule in the Federal Register on a new electronic registration requirement for petitioners seeking to file H-1B petitions subject to its annual quota for new H-1Bs ("the cap"). As has been the case over the last six years, demand for new H-1Bs has far exceeded the number of H-1B visas available under the USCIS' congressionally mandated quota, and the cap has been reached during the first five business days of April. Petitions filed during this period have been subject to the USCIS' random selection process, known as the H-1B "cap lottery." If the USCIS' proposed rule is finalized, the new registration requirement would make far-reaching changes to the annual H-1B cap selection and lottery process. We have summarized the potential major changes to this process below.


Implementation of Pre-Filing Selection Process

 

Under the proposed rule, the cap selection process would be changed to a "pre-filing" selection process whereby cap-subject H-1B petitions are selected for adjudication prior to filing the petition with the USCIS. Currently, the USCIS selects H-1B cap-subject petitions following the submission of the petition with the USCIS. 

Changing the Cap Selection Order for Petitions Filed under the Advanced Degree Exemption

The proposed rule would also change the USCIS' selection order for petitions benefiting from the advanced degree exception. Under the USCIS' congressionally mandated quota, no more than 65,000 cap-subject H-1B visa petitions may be approved each fiscal year. A separate allotment of 20,000 H-1B visa numbers are available to foreign nationals who hold a Master's or other advanced degree from a U.S. institution of higher education (the "Master's cap"). Under the proposed rule, the USCIS would change the selection order so that petitions filed under the Master's cap would be selected in the lottery after the general H-1B selection process has completed. The USCIS believes that this modification would result in higher odds of Master’s cap petitions being selected in the lottery compared to non-advanced degree petitions.

What This Means for Our Clients

If the proposed rule is enacted as a final rule, these changes would have significant repercussions on employers of H-1B foreign nationals. The pre-filing selection process will likely result in a process that is more streamlined and provides greater visibility during H-1B cap selection, and will likely reduce the overall cost for employers filing H-1B petitions in the annual lottery. The changes to the selection process for petitions filed under the Master's cap should, according to the USCIS, result in a higher likelihood of selection for petitions benefiting from the advanced degree exception. 

Not all changes in the proposed rule will benefit H-1B workers, however. We believe that these changes will result in an easier, less expensive process of filing H-1B petitions in the annual lottery, which will likely increase the demand for H-1B petitions and ultimately decrease the overall odds of selection in the lottery. The USCIS has indicated that it is intent on implementing this new process for this coming fiscal year’s annual cap lottery. The proposed rule states, however, that if the USCIS cannot implement the technological infrastructure in time for the new pre-filing selection process prior to the start of the H-1B cap filing season, it may suspend the registration requirement until the following year. Because the USCIS is intent on rolling out the new process for this year's upcoming lottery season, we believe it is possible that there may be a delay in the overall H-1B cap filing process, as well as other uncertainties.

We will be providing a more thorough analysis over the next few days as we continue to review the proposed rule.

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