February 4, 2019

H-1B Changes

DHS Announces Final Rule for H-1B Visa Program – With Expected Benefits for Advanced Degree Holders


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The Department of Homeland Security has posted 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 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 new rule is intended to go into effect on April 1, however the electronic registration requirement will be suspended for the fiscal year (FY) 2020 cap season.

Currently, employers file H-1B petitions once the cap window opens on the first business day in April of the year in which employment is intended to commence. Because the USCIS will not accept petitions any earlier and the cap usually ends as soon as the cap is filled, the best strategy is to submit an H-1B petition on the first business day of April.

The USCIS then monitors H-1B filings and determines the date of when it has received enough petitions to reach the congressional cap.

Once the date is determined, H-1B petitions received by the USCIS on that date will be put through the computer to randomly select the petitions.

Next, 20,000 petitions will be randomly selected from those that were entered into the master’s cap. Those not selected will be re-entered into the regular cap.

The 65,000 petitions for the regular cap will be randomly selected.

The H-1B petitions not randomly selected by the computer will be rejected and returned with a refund of the submitted filing fees.

Merely having a petition accepted does not mean that will be approved. The approval process may be covered in a later blog post.

Effective April 1, USCIS will reverse this process and first select H-1B petitions submitted on behalf of all beneficiaries, including those that may be eligible for the advanced degree exemption. USCIS will then select a number projected to reach the advanced degree exemption from the remaining eligible petitions. USCIS expects that changing the order this way 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. Specifically, USCIS expects this change to result in an estimated increase of up to 16% (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 petitions for FY 2020 on April 1, 2019. The reverse selection order will apply to petitions filed for the FY 2020 H-1B cap season. USCIS will provide H-1B cap filing instruction on uscis.gov in advance of the filing season.

With the FY 2020 filing window for H-1B petitions opening in less than two months it is important to act quickly to determine whether the new rules for the advanced degree exemption may be beneficial to you as an employer or employee.

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