USCIS Final Rule Changes US Master’s Degree Lottery and Adds Future Cap Year Preregistration

U.S. Citizenship and Immigration Service (“USCIS”) has finalized and published the final rule which seeks to amend in substantial ways the way the annual H-1B “cap” work visa applications and lottery are being filed and how the U.S. master’s degree applications are being allocated under the H-1B cap lottery.  It is important to note that the major change in the rule — the introduction of a cap preregistration system — is being suspended until such system is created, tested and rolled out.

As a result, the April 2019 cap season will continue to be held as in previous years with the exception of the way the U.S. master’s degree visa numbers are being allocated.   The final rule is set to be published on January 31, 2019 with an effective date of April 1, 2019.

H-1B Cap Filing Mechanics to Change Significantly For Future (To Be Determined) Years

USCIS will change the way H-1B cap cases are being filed.  Currently and also for April 2019, all H-1B cap applications have to be filed within the first five working days in April and this is commonly referred to as the “H-1B cap season.”   Each case submitted is fully-prepared and in most cases, fully and extensively documented with application forms, filing fees, and supporting documents. After five days, and assuming the 85,000 annual H-1B work visa quota is reached, the government stops accepting new H-1B cap petitions and then they run a random lottery to allocate the available visa numbers.

Under the final rule, USCIS seeks to have a preliminary electronic registration system where petitioners would submit an electronic entry for each H-1B they wish to file.  This registration will happen in March of each year and is to be open for at least 14 days.   There will not be a fee associated with the submission of an electronic entry.   At the conclusion of the registration period, USCIS conduct the random lottery and notify the selected petitioners and only after such notification an H-1B petition can be prepared and filed with USCIS with all supporting documents.

Timing of the H-1B Cap Entry Submission.  USCIS will have a registration period which will be at least 14 calendar days and this registration window is anticipated to be open before the first day for filing (which is April 1^st).  USCIS intends to give the public at least 30 days advance notice of the opening of the registration window.

What Information Will be Required for Each Electronic Entry?   For each H-1B cap visa entry, USCIS will require (1) the employer’s name, employer identification number (FEIN), and address, (2) employer’s representative 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 degree from a U.S. institution of higher education;  (5) employer’s attorney information; and (6) “any additional basic information requested by the registration system” (it is unclear what this may be).

What Will Selected H-1B Cap Entries Have to Do?   Once an employer receives a selection notice, the employer will then be given a period of 90 days (increase from 60 in the proposed rule) to properly file a completed H-1B cap petition.  USCIS may specify different filing windows in an attempt to stagger the filings and to allow for most efficient petition processing.  The H-1B cap petition will need to include evidence of the random selection and will have to meet all other H-1B cap requirements, including LCA, proper filing fees and forms, and supporting documents.

How USCIS Intends to Prevent “Flooding” the System?  The final rule discusses USCIS’s efforts to prevent employers from “flooding” the system in an attempt to gain a higher likelihood of selection.  Since there is no filing fee to submit an entry and since this submission is simpler and has lower overall cost compared to a full H-1B filing, there are concerns that the demand for H-1B cap petitions may actually be dramatically higher compared to prior years. USCIS is explicit that one employer can submit only one entry for a particular beneficiary, which is the existing rule for H-1B cap petition.  Each entry will require an employer attestation that if selected, an H-1B petition will be filed although USCIS seems to admit other than fraud investigation referrals, they may not have very good enforcement mechanisms.  This also does not seems to prevent one candidate getting bona fide job offers from more than one employer and thus having more than one entry filed.

This Electronic Registration System Will NOT Be in Effect for April 2019.   USCIS has been very clear and explicit that the registration system component of the final rule is being suspended and will not be in effect until USCIS is able to create, test and roll out the electronic registration system.   USCIS will be publishing separately and at a later time instructions and specific guidelines.  At this time, we anticipate that the electronic system may be in place and in use during the April 2020 H-1B cap filing season (FY2021).

H-1B U.S. Master’s Cap Lottery to Change to Increase Chances for U.S. Master’s Degree Holders

USCIS is changing the way it allocates the U.S. master’s degree visas by changing the sequence of the way the lottery is run.  Currently, all U.S. master’s cap cases are put together and the 20,000 visas allocated.  The non-selected U.S. master’s degree cap cases are then combined with the regular cap cases and the 65,000 remaining visas are allocated randomly.

Under the new final rule, USCIS will combine all cap cases (U.S. master’s and regular cap) and allocate towards the 65,000 general cap and then, the remaining U.S. master’s degree applications will be allocated towards the 20,000 U.S. master’s cap.  According to USCIS, this switch will increase the likelihood of selection for a U.S. master’s degree petition.   This portion of the rule will become effective on April 1, 2019 and will be in effect for this coming year’s H-1B cap season.

Conclusion

Since the most substantial change in the H-1B cap process introduced by this final rule is being suspended until the registration system is created, we do not anticipate any changes to the April 2019 cap filing process other than changes in the percentage chance for an H-1B to be selected under the random lottery.   We hope that USCIS will take the time to create a flexible and well-designed registration system which will allow for a smooth and predictable H-1B cap filing process in future years.

Please do not hesitate to contact us if we can be of any help in understanding or dealing with this change and please subscribe to our free weekly newsletter to obtain further news and developments on this topic.    If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us as soon as possible.  Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application.