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UNITED STATES – Changes to H-1B Cap Lottery Announced, but Registration Requirement Postponed

On 31 January 2019, the Department of Homeland Security (DHS) published a final rule, to amend regulations governing the H-1B cap process.

The rule changes the lottery process, effective this year, but postpones implementation of the electronic registration requirement until the FY 2021 H-1B cap season.

Reversed H-1B Cap Lottery

Starting with this year’s H-1B cap-subject filing season, which opens on 1 April 2019, for work starting in fiscal year 2020 (from 1 October 2019), US Citizenship and Immigration Services (USCIS) will reverse the order of the H-1B cap lottery. Currently, there are two H-1B cap lotteries – the regular lottery to select enough petitions to meet the 65,000 H-1B quota and the lottery for US 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. Under the new rule, USCIS will conduct the regular lottery first, followed by the advanced degree lottery. USCIS predicts that this change will result in 16% more advanced-degree holders being selected in the H-1B regular lottery.

Delayed Implementation of Electronic Registration System

As expected, the final rule also introduces an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. However, this registration requirement will be suspended for the upcoming FY 2020 cap season. USCIS expects to implement the registration system for future cap seasons, once development and user testing have been completed.

This pre-registration system will mean that employers will no longer have to file a complete H-1B petition only to see it rejected if it is not selected in the cap lottery. Rather, the lottery will be run beforehand, based on the pre-registrations, and employers will then have 90 days (increased from 60 days in a previously proposed version of the rule) to file H-1B petitions for petitioners who have already been selected in the lottery.

What is the H-1B Visa?

H-1B visas are the most common temporary work permits available to foreign national professionals in the United States. They are obtained routinely by US businesses that require foreign professional workers possessing at least a bachelor's degree or its equivalent in a particular field. An H-1B employer must also attest to paying the same salary and benefits packages normally offered to US workers in similar positions and to observing the H-1B program's specific public notice and recordkeeping requirements.

Timing of H-1B Petitions

  • Cap-subject employers should aim to submit their H-1B petitions on 29 March 2019 for delivery to USCIS on 1 April 2019.
  • To file an H-1B visa petition, an employer must first obtain a certified Labor Condition Application (LCA) from the Department of Labor (DOL). Currently, the DOL is taking seven calendar days to certify an LCA. However, regulations permit the DOL to take up to ten business days.
  • In addition, if a company has not filed an LCA since 2008, it is likely not registered with the DOL, and will first need to be registered through a process that takes an additional three business days.
  • In previous years, the high usage rate of the online LCA system towards the end of March caused the website server to shut down or function extremely slowly.
  • Moreover, a prospective H-1B employee whose degree is not from the US will need to have their degree equivalency attested by an accredited credential evaluation company, which may take more than 24 hours.
  • Workers benefiting from approved petitions may start work on 1 October of the same year.

Action Items

  • Employers should contact their immigration specialist to start planning their H-1B filings as soon as possible, to ensure they are accepted by USCIS for the lottery.

This alert was prepared with information provided by Gibney, Klug, Kan-Tor & Acco and Newland Chase.

DISCLAIMER: The information contained in this immigration alert has been abridged from laws, court decisions, and administrative rulings and should not be construed or relied upon as legal advice. If you have specific questions regarding the applicability of this information, please contact Peregrine © 2019 Peregrine Immigration Management Ltd.