On January 30, 2019, DHS released a copy of a final rule that amends the regulations governing H-1B petitions that are filed under the H-1B cap (commonly known as the “H-1B visa lottery”). This affects beneficiaries counted towards the H-1B regular cap, as well as beneficiaries with advanced degrees from U.S. institutions of higher education who are eligible for an exemption from the regular cap (“advanced degree exemption”). The final rule reverses the order that USCIS will select H-1B petitions under the H-1B regular cap and the advanced degree exemption, and also adds an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. The final rule will become effective on April 1, 2019, however, DHS is suspending the electronic registration requirement for the fiscal year (FY) 2020 H-1B cap filing season. This means that H-1B cap-subject petitions filed as part of the FY2020 H-1B cap filing season, which opens on April 1, 2019, will need to be filed using the same process as in prior years, with petitioners submitting a complete H-1B petition to USCIS, together with filing fees, in order to be eligible to be considered for selection in the FY2020 H-1B visa lottery.
USCIS anticipates that the registration process will begin for next year’s (FY2021) H-1B cap. However, this could change depending on USCIS’ development of the technical aspects of this system. Once it is implemented, all employers seeking to sponsor a worker for an H-1B petition under the cap will have to first electronically register with USCIS. The registration for each individual will take place during a 14-day calendar period before the first possible date of filing a H-1B cap petition for the particular fiscal year. These registrations will be submitted electronically, and there must be a separate registration for each beneficiary. Employers can only submit one registration per individual, similar to the current rules regarding H-1B cap petitions that are filed. USCIS will then conduct a randomized lottery of the submitted registrations and notify the employers of selected cases. Only beneficiaries that are selected via the registration process will be allowed to file cases via their employers as H-1B cap petitions. USCIS will give employers a designated filing period to file the H-1B petition. This period will be indicated on the notice. The filing period for H-1B cap cases, once selected in the registration system, will be at least 90 days.
USCIS will announce the start of the registration period on its website at least 30 calendar days in advance of the start of the registration period and will publish a notice in the Federal Register announcing the implementation of the registration process in advance of the H-1B cap season. USCIS also anticipates providing training to the public on how to use the registration system.
As always, what USCIS states and what it actually does can be completely different. To get the most current information available about the H-1B registration requirement and information regarding this year’s H-1B cap season, please visit the USCIS website or contact us directly.