Proposed Rule on H-1B CAP Selection Process

Practice Areas

By: Armando Escobedo and Gladys Gervacio

Summary

On November 30, 2018 the US Department of Homeland Security (DHS) published a proposed rule requiring H-1B petitioners to first electronically register with US Citizenship and Immigration Services (USCIS) during a designated registration period if seeking to file an H-1B Cap-Subject Petition.

What is an H-1B Petition?

The H-1B visa classification is a non-immigrant visa that enables US companies to temporarily employ foreign skilled professionals to work in the US. To qualify for the H-1B program, the Beneficiary must:

  • Work in a specialty occupation position that requires theoretical and practical application of a body of highly specialized knowledge; and
  • Possess at least a US bachelor’s degree or equivalent in the specific specialty.

In the past years, USCIS used a computer-generated lottery system to select the petitions to be counted towards the cap.

Proposed Changes:

  1. Designated Electronic Registration Period: The registration process would open at least 14 days prior to the first date of the H-1B filing window of each fiscal year (April 1) and remain open for at least 14 days:

    a. USCIS would also post a notice of registration on its website at least 30 days prior to the designated period

  2. Information Required for Registration: Employers would be allowed to submit only one registration per Beneficiary with the following information:

 

Employer’s Name:

  • Identification Number (EIN)
  • Address
  • Authorized Representative’s
    • Name
    • Job Title
    • Contact Information
Beneficiary’s Name:

  • Date of birth
  • Country of birth & citizenship
  • Gender
  • Passport number
  • Highest level of education
  1. Allocation of Annual H-1B Cap:

    a. USCIS would first count all registrations (regular cap and advanced degree) towards the annual cap. Then it will select petitions towards the advanced degree exemption.

    b. USCIS would also hold H-1B registrations on reserve in case of not satisfying annual quota due to denials or withdrawals

  2. Employer Notification if entry is selected: Employer would have at least 60 days to file the selected H-1B petition.

Effective Date:

The proposed rule was officially published in the Federal Register on December 3, 2018. It is now under a 30-day public comment period. DHS will issue a finalized rule after carefully reviewing the public comments.

If the rule is finalized as proposed, but USCIS is unable to efficiently carry out this new electronic registration system before the FY 2020 cap season, USCIS would likely suspend the registration requirement for FY 2020 cap season.

As always, we will continue to monitor this new rule

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