H-1B Update: DHS Releases Final Regulation for H-1B Cap-Subject Petitions

On January 30, 2019, the Department of Homeland Security (DHS) released a copy of a final rule amending the regulations governing H-1B Cap-Subject Petitions.  H-1B status is a nonimmigrant category that allows U.S. employers to petition a foreign professional worker for employment in a “specialty occupation,” or an occupation that typically requires at least a bachelor’s degree or the equivalent. 

Effective April 1, 2019, USCIS will reverse the order in which the lottery for H-1B Cap-Subject Petitions is conducted.  First, all H-1B Cap-Subject Petitions will be included in the initial lottery for 65,000 H-1B petitions.  The remaining H-1B Cap-Subject Petitions for U.S. Master’s or Ph.D. degree holders will be subject to the second lottery for 20,000 additional H-1B petitions.  By reversing the order of the H‑1B Cap-Subject petition lotteries, USCIS intends to prioritize petitions filed on behalf of beneficiaries who have attained a master’s or higher degree from U.S. universities.

Additionally, effective for H-1B Cap-Subject Petitions for the Fiscal Year 2021, which opens in the first week of April 2020, petitioners seeking to file H-1B Cap-Subject Petitions will be required to register online during a 14-day registration period sometime prior to April 1, 2020.   At the time of mandatory electronic registration, employers would not be required to pay a filing fee, submit a certified Labor Condition Application (LCA), or file a complete H-1B Petition.  Rather, the employer would be asked to provide only basic information regarding the employer and the beneficiary.  USCIS will subsequently conduct a lottery from the pool of registered petitioners.  Only those petitioners whose registrations are selected will be eligible to proceed with completing an H-1B Cap-Subject Petition.  The mandatory registration rule will not affect H-1B Cap-Subject Petitions for the Fiscal Year 2020 that are due within the first week of April 2019.

In light of the increased scrutiny resulting from the Trump Administration’s Buy American, Hire American Executive Order (No. 13788) and the upcoming deadline of April 1, 2019, U.S. employers who are interested in petitioning for a foreign professional working under the H‑1B visa category are encouraged to contact an experienced immigration law firm such as U.S. Immigration Law Group, LLP to assess and prepare their H-1B petition as soon as possible. 

Should you have any questions and would like to schedule a consultation with our firm regarding the H-1B process, please do not hesitate to contact our office at (714) 786-1166

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