DHS Announces Final Rule for H-1B Visa

What is the new rule?

Today, the Department of Homeland Security posted a final rule that will alter regulations regarding H-1B petitions, including those eligible for the advanced degree exemption. This new rule reverses the order in which USCIS selects H-1B petitions and it presents an electronic registration requirement for petitioners. USCIS will select H-1B petitions in a different order, which is predicted to increase the number of petitions for people with a master's degree or higher from a U.S. institution. The electronic registration component will be suspended for the fiscal year 2020 cap due to public feedback and to make sure the system is working properly, but will be required for fiscal year 2021. It will require petitioners to first register with USCIS electronically during a specific registration period. Only those that are registered electronically will be eligible to file an H-1B petition. This electronic component is expected to lower costs and increase efficiency.

This rule will be published in the Federal Register tomorrow, January 31st.

Why is there a new rule?

In April of 2017, President Donald Trump issued an executive order that directed the Department of Homeland Security to create new rules that will protect the interests of U.S. workers, appropriately named the "Buy American and Hire American Executive Order." This executive order specifically mentioned the H-1B program, and instructed DHS to make reforms to the program to ensure that H-1B visas are only provided to the most-skilled or highest-paid applicants. The new rule is intended to positively impact employers and adjudicators, lower costs for employers, and increase efficiency. U.S. employers will have a greater chance of selection in the H-1B lottery if they are seeking to employ workers with a U.S. master's degree or higher under this rule. This will result in a 16% increase in the number of selected petitions for H-1B beneficiaries with a U.S. master's degree or higher.

When will this rule become effective?

The new rule will become effective on April 1st, 2019 or the start of fiscal year 2020. This is when USCIS will begin accepting H-1B cap petitions. If you plan to petition for an H-1B visa in fiscal year 2020, make sure to get all the information you can.

USCIS will reach out and ensure that future petitioners know how to use the electronic registration system prior to its implementation in fiscal year 2021. Once implemented, USCIS will announce the registration period 30 days prior to the date the registration is due.

For more information:

Visit the Office of the Federal Register to view the unpublished version of this rule here.

This blog post does not serve as legal advice and does not establish any client-attorney privilege. If you have any questions, please do not hesitate to contact our legal team directly.

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