DHS Prioritizes U.S. Advanced Degrees In H-1B Final Rule; Electronic Registration Requirement Postponed
The Department of Homeland Security has published a final rule
amending regulations governing H-1B cap-subject petitions,
including those that may be eligible for the advanced degree
exemption. The final rule reverses the order by which U.S.
Citizenship and Immigration Services (USCIS) selects H-1B petitions
under the H-1B regular cap and the advanced degree exemption and
introduces an electronic registration requirement for petitioners
seeking to file H-1B cap-subject petitions. The rule is effective
April 1, 2019, although the electronic registration requirement
will be suspended for one year, USCIS said.
Starting on April 1, USCIS will first select H-1B petitions (or
registrations, once the registration requirement is implemented)
submitted on behalf of all beneficiaries, including those that may
be eligible for the advanced degree exemption. USCIS will then
select from the remaining eligible petitions a number projected to
reach the advanced degree exemption. Changing the order in which
USCIS counts these allocations will likely increase the number of
petitions for beneficiaries with a master’s or higher degree
from a U.S. institution of higher education to be selected under
the H-1B numerical allocations, USCIS said. Specifically, the
agency noted, the change will result in an estimated increase of up
to 16 percent (or 5,340 workers) in the number of selected
petitions for H-1B beneficiaries with a master’s degree or
higher from a U.S. institution of higher education.
USCIS will begin accepting H-1B cap petitions for fiscal year
(FY) 2020 on April 1, 2019. The reverse selection order will apply
to petitions filed for the FY 2020 H-1B cap season. Petitioners may
file an H-1B petition no more than six months before the employment
start date requested for the beneficiary. USCIS said it will
provide H-1B cap filing instructions in advance of the filing
season.
As noted above, after considering public feedback, USCIS has
suspended the electronic registration requirement for the FY 2020
cap season “to complete user testing and ensure the system and
process are fully functional.” Once implemented, the
electronic registration requirement will require petitioners
seeking to file H-1B cap petitions, including those that may be
eligible for the advanced degree exemption, to first electronically
register with USCIS during a designated registration period. Only
those whose registrations are selected will be eligible to file an
H-1B cap-subject petition. USCIS said it expects that the
electronic registration requirement, once implemented, “will
reduce overall costs for petitioners and create a more efficient
and cost-effective H-1B cap petition process for USCIS and
petitioners.”
Additionally, USCIS said it will publish a notice in the Federal
Register to announce the initial implementation of the H-1B
registration process in advance of the cap season in which it will
implement the requirement. Before implementation, USCIS “will
conduct outreach to ensure petitioners understand how to access and
use the system.” USCIS said it will announce the designated
electronic registration period at least 30 days in advance for each
fiscal year it is required.
According to reports, DHS pushed through the proposed rule to
finalization quickly. The agency had published a notice of proposed
rulemaking on December 3, 2018. Public comments were due January 2;
USCIS was not closed during the federal government shutdown because
it is funded by fees.
The Alliance of Business Immigration Lawyers recommends that
employers assess their need for H-1B employees and begin working on
their H-1B petitions now. Annual demand typically far outstrips
availability, so the visas are snapped up immediately.
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