DHS Publishes Final Rule for H-1B Visa

Last week, we published a blog post regarding the final rule announced by the Department of Homeland Security regarding H-1B visa petitions. This rule has now been published in the Federal Register and AILA has issued a practice alert with details about the new regulation.

Electronic Registration Requirement

One of the most important changes that this new rule implements is the addition of an online registration component. This electronic registration will be required beginning in fiscal year 2021. It will not be required for fiscal year 2020 because user testing of the registration system has not yet been completed and DHS wants to ensure that the system is working properly. USCIS plans to engage in outreach in order to provide public training about the registration system prior to its implementation so that petitioners understand how to access and utilize the system. The electronic registration component will reduce overall costs for petitioners and provide more effectiveness and efficiency in the H-1B cap petition process.

Starting in fiscal year 2021, petitioners who want to file H-1B cap petitions will have to register online with USCIS during a 14 calendar day registration period. The registration period will be announced on the USCIS website at least 30 days prior. Petitioners must electronically submit separate registrations for each beneficiary they want to register, and petitioners may only submit one registration per beneficiary in a fiscal year. If petitioners submit more than one registration per beneficiary, all registrations related to that beneficiary for that fiscal year will be invalidated. Therefore, it is of utmost importance to only submit one registration for each beneficiary.

USCIS will notify petitioners whose registrations are selected. Only these petitioners will be eligible to proceed and file an H-1B cap petition during the approximately 90-day filing period.

Allocation of H-1B Cap Numbers

Prior to the new rule, advanced degree exemption beneficiaries (beneficiaries with advanced degrees from U.S. institutions of higher education) were selected before the H-1B cap beneficiaries in years when the H-1B cap and advanced degree exemption were both reached within the first five days of the filing period. The final rule will reverse the selection order. Applicants will be selected for the H-1B regular cap before applicants are selected for the advanced degree exemption. The change in the order will increase the number of beneficiaries selected with a master's degree or higher from a U.S. institution. USCIS predicts an increase of up to 16% (5,340 workers) of beneficiaries in this category. This change will be implemented in fiscal year 2020, even though the electronic registration requirement will not yet be mandated.

For More Information:

Read our previous blog post about this issue 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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This information comes from a news release from the American Immigration Lawyers Association (AILA Doc. No. 18111639).