DHS Proposal Could Drastically Change H-1B Cap Filing Seasons

The Department of Homeland Security (“DHS”) announced a Notice of Proposed Rulemaking (“Notice”) on Friday that would require companies seeking first-time H-1B approvals subject to the statutory cap or lottery (also known as “cap-subject H-1B petitions”) to first electronically register with U.S. Citizenship and Immigration Services (“USCIS”) during a designated registration period before submission of the H-1B petition. Under this proposal, USCIS would also reverse the order by which H-1B petitions are selected. To review the Notice, click here. 

The current regulations provide that 85,000 total new cap-subject H-1B visas are available each fiscal year, 20,000 of which are reserved for candidates who have earned an advanced degree (master’s degree or higher) from a U.S. educational institution.  Once the number of petitions submitted to USCIS exceeds the “cap,” a computer-generated lottery selection process is triggered to determine who receives one of the 85,000 available H-1B visas. Moreover, under the current regulations, those with advanced degrees are first to enter the H-1B lottery (first 20,000 slots), followed by the “regular cap” lottery (remaining 65,000 slots).

DHS is now proposing to conduct the “regular cap” lottery first, followed by the advanced degrees lottery. As part of President Trump’s “Buy American and Hire American” Executive Order, this proposal seeks to ensure that H-1B visas are awarded to the most skilled workers and those with the highest salaries.

Since it is unclear whether USCIS will implement these proposed changes by April 1, 2019, companies should remain proactive and prepare for the possibility that they will need to register online before submitting H-1B cap-subject petitions. Furthermore, it is expected that USCIS will tailor the online registration to incorporate robust anti-fraud measures.

Williams Mullen will continue to monitor the H-1B cap proposal and will provide updates as this proposal makes its way through the Notice and Comment stage of the rulemaking process. All written comments are to be received by DHS on or before January 2, 2019.

For those companies seeking to file H-1B petitions during the cap season beginning on April 1, 2019, advance preparation is required so that each petition is timely filed. Your company should begin preparations by January 2019, and contact immigration counsel as necessary, to ensure H-1B cap cases are prepared and ready to file.  Cap-subject H-1B petitions must be filed, and received by USCIS, during the first week of April 2019, in order to be included in the lottery process.