On November 30, 2018, Department of Homeland Security (DHS) issued a notice of proposed amendment to the H-1B visa to include an electronic registration process and to reverse the order by which U.S Citizenship and Immigration Services (USCIS) selects petitions under the H-1B cap and the advanced degree exemption.
H-1B visa program allows U.S. employers to temporarily employ foreign workers with a bachelors degree or higher. Congress limited the number of visas issued in this category to 65,000 annually (this is the “regular cap”). Congress also allowed for an extra 20,000 of this visa category to be issued to foreign nationals who hold a masters or higher degrees (referred to as the advanced degree exemption or “master cap”).
Under the current regulation, a petitioner (commonly the employer), may directly file a petition to obtain H-1B visa after the petitioner has filed (and is approved) a Labor Condition Application (lCA) with Department of Labor (DOL). This LCA must include the proposed dates of the employment.
DHS now proposes to add an initial registration requirement for petitioners seeking to file H-1B petitions for both beneficiaries subject to the regular cap and those who are eligible for the advanced degree exemption and subject to the master’s cap. This will be an electronic registration process through USCIS’S website.
After the registration period has closed, USCIS will then randomly select, from the registrations that have been timely received, a sufficient number projected to meet the applicable H-1B allocations. Petitioners whose registrations were selected may then proceed to file an H-1B petition for the named beneficiary.
Further, DHS also proposes a change to the process by which USCIS counts H-1B registrations (or petitions if the registration requirement does not pass) by first selecting registrations submitted on behalf of all beneficiaries including those eligible for the advanced degree exemption.
The Registration Program
This is the first big addition. Instead of directly filing an H-1B petition, typically after LCA is approved, petitioners must first go through an initial electronic registration process with USCIS. The registration period is proposed to start before April 1 with at least a 30 day notice of opening, and at least 14 days before the first day of filing. Petitioners will be required to provide various information during the registration process. Specifically, petitioner will be required to attest to the fact that they intend to employ the named beneficiary for the filing fiscal year.
Petitioners may only submit one registration for the same beneficiary during the same fiscal year and will not be permitted to substitute beneficiaries after the registration period has ended.
Petitioners need not, but may, submit an LCA to DOL for certification until they have been notified that they were selected.
USCIS will notify petitioners whose registrations were selected that they are eligible to file an H-1B petition on behalf of the named beneficiary within a designated H-1B filing period. Petitioners will be given at least 60 days to properly file a completed H-1B petition for the named beneficiary. 8 CFR 214.2(h)(8)(iii)(C). Petitioners may only file a H-1B petition for the named beneficiary on the initial registration. No substitutions will be permitted under the proposed rule.
DHS is proposing several filing periods within a given fiscal year. All petitions filed outside the petitioners specific filing period window will be rejected.
Advanced Degree Exemption
The proposal also intends to reverse the order in which USCIS counts petitions that will be exempt under the masters cap.
Under the current regulation, USCIS counts the petitions filed for beneficiaries with masters degree or higher toward the H-1B advanced degree exemption until the projected number is reached (again 20,000). The new proposal will amend this rule to require that USCIS include and count registrations for petitions eligible for masters exemptions toward the regular cap first (that is toward the 65,000 congressional cap), until the projected number needed to meet the regular cap is reached. Then those registrations (or petitions) eligible for masters exemption not selected under the regular cap will then be selected and counted toward the projected number needed to reach the masters exemption.
DHS expects to be able to publish and implement all or parts of this rule in time for fiscal year 2020. DHS is currently accepting comments on this proposal until January 2, 2019.
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