Immigration Law

H-1B Final Rule (Jan. 31, 2019)

Federal Register / Vol. 84, No. 21 / Thursday, January 31, 2019

"This final rule amends Department of Homeland Security (“DHS” or “the Department”) regulations governing petitions filed on behalf of H-1B beneficiaries who may be counted toward the 65,000 visa cap established under the Immigration and Nationality Act (“H1B regular cap”) or 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 amendments require petitioners seeking to file H-1B petitions subject to the regular cap, including those eligible for the advanced degree exemption, to first electronically register with U.S. Citizenship and Immigration Services (“USCIS”) during a designated registration period, unless the registration requirement is temporarily suspended. USCIS is suspending the registration requirement for the fiscal year 2020 cap season to complete all requisite user testing of the new H-1B registration system and otherwise ensure the system and process are operable.

This final rule also changes the process by which USCIS counts H-1B registrations (or petitions, for FY 2020 or any other year in which the registration requirement will be suspended), by first selecting registrations submitted on behalf of all beneficiaries, including those eligible for the advanced degree exemption. USCIS will then select from the remaining registrations a sufficient number projected as needed to reach the advanced degree exemption. Changing the order in which USCIS counts these separate allocations will likely increase the number of beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected for further processing under the H-1B allocations. USCIS will proceed with implementing this change to the cap allocation selection process for the FY 2020 cap season (beginning on April 1, 2019), notwithstanding the delayed implementation of the H-1B registration requirement."