Proposed Rule on H-1B Cap Subject Petitions

Practice Areas

By: Gladys V. Gervacio, Armando Escobedo


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.


The H-1B visa classification is a non-immigrant visa to enable 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 has received more than the annual H-1B cap-subject petitions and used a computer-generated lottery system to select the petitions to be counted towards the cap.


DHS would change the way USCIS selects H-1B cap-subject petitions. First it would count all registrations (regular cap and advanced degree) towards the annual cap. Then it would select petitions towards the advanced degree exemption. This process would increase the chances of selecting beneficiaries with advanced degrees and reduce the wait times for receiving the cap receipt notices.


The proposed rule is scheduled to be published in the Federal Register on December 3, 2018. Once it is officially published, it will enter 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, then 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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DHS Proposes Merit-Based Rule for More Effective and Efficient H-1B Visa Program

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