H-1B Lottery Fiscal Year 2020 – USCIS Proposed Rule Adding a Registration Requirement

U.S. Citizenship and Immigration Services (USCIS) proposed a rule that would require petitioners seeking to file H-1B petitions subject to the regular cap, including those eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period. The proposed rule would also reverse the order by which USCIS selects H-1B petitions under the H-1B cap and the advanced degree exemption.

We will begin preparing H-1B petitions in January 2019. Contact our office to file an H-1B petition and with your questions about the H-1B program and the proposed rule.

Background

The H-1B program allows companies in the United States to temporarily employ foreign workers in specialty occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s or higher degree in the specialty, or its equivalent.

The congressionally mandated H-1B cap annually allocates 65,000 H-1Bs (commonly known as the “regular cap”) and 20,000 additional H-1Bs for holders of a U.S. master’s or higher degree (commonly known as the “advanced degree exemption”). When USCIS receives more than enough petitions to reach the congressionally mandated H-1B cap, a computer-generated random selection process, or lottery, is used to select the petitions that are counted towards the number of petitions projected as needed to reach the cap.

Currently, in years when the H-1B cap and the advanced degree exemption are both reached within the first five days that H-1B cap petitions may be filed, the advanced degree exemption beneficiaries are selected before the H-1B cap beneficiaries.

Proposed Rule

The proposed rule would reverse the selection order and count all registrations or petitions toward the number projected as needed to reach the H-1B regular cap first. Once a sufficient number of registrations or petitions have been selected for the H-1B regular cap, USCIS would then select registrations or petitions toward the advanced degree exemption.

Implications

According to USCIS, this proposed change “would increase the chances that beneficiaries with a master’s or higher degree from a U.S. institution of higher education would be selected under the H-1B cap and that H-1B[s] would be awarded to the most-skilled and highest-paid beneficiaries.” USCIS indicated that the proposed process “would result in an estimated increase of up to 16 percent (or 5,340 workers) in the number of selected H-1B beneficiaries with a [U.S.] master’s degree or higher.”

Additional information about the proposed rule is available in the Federal Register and USCIS’ website.