Today, January 31, 2019, the US Citizenship and Immigration Service (“USCIS”) published the Final Rule modifying the selection process for H-1B cap-subject petitions. The Rule reverses the order of the cap lottery selection process to favor foreign workers with a U.S. Master's or higher degree, and also creates an electronic pre-filing registration process which will save employers from having to prepare and file, and the USCIS from having to review, H-1B cap-subject petitions that will not ultimately be selected in the lottery. While the Master’s cap order reversal will go into effect this coming FY2020 H-1B cap season, which starts on April 1, 2019, the pre-registration process will not take effect until next year, for the FY2021 cap season.
The USCIS announced in the final rule that it will suspend the pre-registration requirement for this year’s H-1B cap season to allow the agency to conduct user testing and complete development of the necessary technological infrastructure for the electronic pre-filing selection system. Prior to next year’s cap season, the USCIS will publish a notice to announce the initial implementation of the H-1B electronic pre-registration process. Once implemented, the USCIS will announce the pre-registration period at least 30 calendar days before each upcoming H-1B cap season. Employers will be required to register for each prospective, cap-subject H-1B worker prior to the April 1st start date of each cap season. Only those employers with selected registrations will be instructed to submit the complete H-1B petitions within a 90-day period.
Reversal of Lottery Selection Order
Effective April 1, 2019, the USCIS will implement the reverse selection order. Under this new process, if the projected number of the regular cap and the Master’s cap exemption is reached within the first five business days of the cap season, the USCIS will randomly select H-1B petitions (or registrations) for the H-1B regular cap first, including petitions eligible for the H-1B Master’s cap exemption, against the mandatory limit of no more than 65,000 cap-subject H-1B visas. Once met, the USCIS will then randomly select eligible petitions for the separate allotment of 20,000 H-1B visas under the Master’s cap exemption. The USCIS anticipates that the reverse selection order will result in an estimated increase of up to 16% of H-1B beneficiaries with a Master’s degree or higher degree from a U.S. institution being selected the cap lottery. Critics of the new process argue that the change to the selection order is outside the scope of the USCIS’ authority as the rule conflicts with the statutory language governing the H-1B lottery, which requires the Master’s cap exemption to be counted first. Legal challenges to the reverse selection order could result in delaying implementation of this process for this cap season.
What this Means for This Year’s Cap Season
With the suspension of the pre-registration requirement, this year’s H-1B cap season will follow filing procedures used in prior cap seasons. This means that complete petitions must be prepared and filed with the USCIS for all H-1B cap candidates during the short H-1B cap filing season from April 1st to April 5th, 2019. Based on the high number of petitions filed in years past, we expect that the cap will be reached within this five day period, and petitions filed during this period will be subject to the USCIS’ random selection process, or “cap lottery”. To ensure that H-1B cap-subject petitions are properly filed within the short filing period from April 1st to April 5th, we have already reached out to employers to begin the process of identifying potential H-1B candidates. Our clients should contact our office for further assistance in the H-1B cap filing process.
Due to the Master’s cap order reversal, which will go into effect this cap season, candidates eligible for the Master’s cap exemption may have slightly higher odds of being selected in the FY2020 cap lottery compared to previous years. Candidates without a U.S. Master’s or higher degree, will likely face relatively worse odds. The Master’s order reversal procedure, however, may be subject to litigation, and could be enjoined by a federal court before the H-1B cap filing season starts on April 1st.
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