Changes to H-1B Petitions for FY 2020 Cap Season Effective April 1

On January 30, 2019, the Department of Homeland Security (DHS) posted a final rule amending regulations for the H-1B cap-subject petitions.  Effective April 1, 2019, the final rule reverses the order by which the U.S. Citizenship and Immigration Services (USCIS) will select H-1B petitions under the H-1B regular cap and the advanced degree exemption.

During previous H-1B cap seasons, there were 85,000 visas allotted per fiscal year.  Because there are always more petitions filed than there are visas, there is a computerized lottery system.  Last year almost 200,000 petitions were filed.  Petitions were sorted by regular cap (foreign workers with a bachelor’s degree or equivalent, or with a master’s or higher degree from a non-U.S. college or university) and by advanced degree (foreign workers with a master’s or higher degree from a U.S. institution of higher education).

In previous years, 20,000 H-1Bs were reserved for foreign workers who had obtained a master’s or higher degree from a U.S. educational institution.  After the 20,000 from the advanced degree group were picked by lottery, those with an advanced degree that were not picked were put back into the pool of 65,000 with the regular cap to hopefully get a 2nd chance at the H-1B.

As of April 1, the selection order will be reversed.  There still will be two allocations – a set number will be used to pick from all applicants (regardless of category), and then a set number to include only advanced degree.  First, USCIS will count all applicants towards the number projected to reach the designated allocation, which they will refer to as the H-1B regular cap.  Once that number of applicants from both categories has been selected for the H-1B regular cap, USCIS would then select applicants towards the advanced degree exemption.  These numbers have yet to be determined; we don’t know if they will allocate 65,000 for the combined group and 20,000 for only the advanced degree, or if a new combination will be used.

This rule is anticipated to give advanced degree U.S. graduates a better chance of being selected for the H-1B than in previous years.  On the flip side, the likelihood that those with a bachelor’s or non-U.S. degree will get an H-1B slot will be reduced.  The number of petitions filed inevitably will surpass the number of H-1B visas available; consequently, the anxiety still remains for employers and prospective employees who can’t be sure whether their H-1B petition will be picked in the lottery.  This will change next year.

USCIS is working on a separate electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions for FY 2021.  This will require petitioners to 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 expects that the electronic registration will eliminate overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process for USCIS.  Watch for announcements later this year.

A recommendation from the Orr & Reno Immigration Team:  The time to start an H-1B cap-subject petition for FY 2020 is NOW so it can be ready to file on April 1.

About the Author:  Robin L.H. Vermette

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