USCIS Proposes to Modify FY2020 H-1B Cap Process

On December 3, 2018, U.S. Citizenship and Immigration Services (USCIS) published a proposed rule to modify the H-1B cap-subject petition filing process for the upcoming FY2020 H-1B cap. The proposed regulation would create a registration requirement for cap-subject H-1B petitions and would also provide that the “regular” cap lottery be run before the advanced degree (“Master’s”) cap lottery, so as to increase the number of H-1B visas allocated to individuals holding U.S. advanced degrees.  Publication of the rule is now followed by a 30-day comment period, open until January 2, 2019, during which period the public may provide feedback to USCIS on the proposal. USCIS hopes to implement the new registration requirement for the upcoming FY2020 H-1B cap program, though it is uncertain whether the required regulatory process and technical steps can be completed in time.

Proposed Registration Requirement

• Registration period: The proposed rule would require employers to first register each prospective H-1B cap petition beneficiary online with USCIS during a designated registration period lasting a minimum of 14 days. The registration period would occur at least two weeks in advance of April 1, the first date H-1B petitions may be filed. USCIS will provide 30-day advance notice of the designated registration period.
• Online registration form: The online registration form will request basic information about the petitioner and beneficiary, including but not limited to company name and FEIN;  company contact information; beneficiary name, date of birth, country of birth and country of citizenship; and whether the beneficiary holds an advanced degree from a U.S. university. There is no proposed fee for registration submission.
• Selection of registrants:  At the close of the registration period, if USCIS receives more registrations than needed to reach the H-1B cap (as expected),  USCIS will randomly select a sufficient number of electronic registrations projected as needed to meet the H-1B regular cap and Master’s cap.  Each selected registrant will then be assigned a designated 60-day period during which the petitioning employer must file the H-1B petition for the selected registrant. Registrants who are not selected will remain in a registration reserve, and if additional H-1B visas become available (for example, if a selected registrant does not ultimately file an H-1B petition), USCIS may select additional registrants from the reserve to file H-1B cap petitions.

Lottery Reversal

• Current lottery order:  There are currently two H-1B cap lotteries: the regular H-1B cap lottery and the H-1B cap lottery for U.S. advanced-degree holders, for which an additional 20,000 visas are available.  Historically, USCIS has held the advanced degree lottery first and petitions not selected in that lottery were added to the regular lottery.
• Proposed lottery order: The proposed rule would reverse the lottery order and include all registrants in the regular lottery. USCIS would conduct the regular lottery first, and upon completion, USCIS would conduct the advanced degree cap lottery for the remaining registrants holding advanced degrees from U.S. universities.  USCIS predicts that this change will result in 16% more advanced-degree holders being selected in the H-1B regular lottery.

Timing Issues and Impact on Employers

USCIS indicates that it would like to implement these rule changes for the upcoming FY2020 H-1B cap season.  However, timing will be a significant challenge.

USCIS must consider all comments received in response to this proposal through January 2, 2019. USCIS must then publish an implementing regulation that contemplates these comments. If comments are numerous, as expected, it will take additional time for USCIS to review, analyze, and refine the regulation as needed.  Additionally, in the proposed regulation USCIS acknowledged that other factors may result in the registration requirement being postponed, including technological problems related to creating and operating the online registration database.

Therefore, USCIS may ultimately require employers to prepare and file H-1B cap petitions for FY2020 on April 1, consistent with historical practice, instead of utilizing the proposed streamlined registration process.  If USCIS defers the registration requirement to FY2021, USCIS will nonetheless conduct the H-1B cap lotteries in the proposed reverse order, as outlined above, in an effort to allocate more visas to advanced-degree holders.

Next Steps

Gibney is closely monitoring the proposed rule, identifying issues and considering responsive comments, and planning H-1B cap strategies to meet these new challenges. If you have questions concerning the proposed rule, or if you would like assistance in submitting a comment on the rule, please contact your designated Gibney representative or email info@gibney.com.