Possible New Twist on H-1B CAP Program

On December 3, 2018, the USCIS proposed a plan which would eliminate the filing of cap-subject H-1B cap petitions during the first week of April:  https://www.federalregister.gov/documents/2018/12/03/2018-26106/registration-requirement-for-petitioners-seeking-to-file-h-1b-petitions-on-behalf-of-cap-subject

The proposal introduces an Online Registration System.  If the regulation becomes effective in 2019, employers will have a 15-day period at least 2 weeks prior to April 1 to submit free online registration forms (one form per employee).  The registration forms would include the following information:

  1. The employer’s name, ID number and mailing address;
  2. The employer’s authorized representative’s name, job title and contact information;
  3. The beneficiary’s full name, date of birth, country of birth, country of citizenship, gender and passport number;
  4. Whether the beneficiary has obtained a master’s or higher degree from a U.S. institution of higher education;
  5. The employer’s attorney or accredited representative, if applicable; and
  6. Any additional basic information requested by the USCIS.

The online registration system will not require a filing fee, a Labor Condition Application (LCA) or an H-1B petition prior to the H-1B lotteries.

Previously the 85,000 Cap H-1Bs were divided into two categories: the first lottery for 20,000 was limited to beneficiaries with advanced degrees; then the second lottery of 65,000 included the remaining applicants with advanced degrees along with the rest of the H-1B applicants.  The proposed new lottery would reserve the first 65,000 H-1Bs for beneficiaries with advanced degrees from U.S. universities.  The remainder not picked along with the rest of the applicants will go into a pool for the remaining 20,000 H-1Bs. This should increase the chances for beneficiaries with advanced U.S. degrees to be chosen.

After the computerized lottery, the USCIS will notify employers whose H-1B petitions were chosen and employers will be given approximately 2 months to get LCAs approved and submit their H-1B petitions with the proper filing fees.  There might be multiple filing periods so not all the H-1B petitions are submitted at the same time.

The comment period on the proposed regulation is limited to 30 days so it appears the Service wants the new online registration system in operation for 2019.  However, Immigration is not known for publishing regulations quickly and they may have to wait until 2020 for implementation.

Our Immigration Team will watch this carefully for developments.

About the Author:  Robin L.H. Vermette

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