DHS Proposes Rule Affecting H-1B Selection Process

Today, the Department of Homeland Security (DHS) announced a notice of proposed rulemaking that affects all H-1B visa petitioners subject to the cap.

Electronic Registration
The proposed rule would require H-1B visa petitioners to electronically register with U.S. Citizenship and Immigration Services (USCIS) during a registration period. It is important to note that this rule provides significant leeway for USCIS to not implement this registration requirement for H-1B cap cases filed in April 2019. Considering the mandatory notice and comment period, followed by system testing, there likely will not be much advance notice. Companies should plan accordingly and be prepared for either scenario. USCIS anticipates that this change would help reduce the wait time for notifying applicants of cap selection.

Reversal of Selection Order for Advanced Degree Holders
The proposed rule also reverses the order by which H-1B petitions counted towards the cap are selected. Currently, when the H-1B cap and advanced degree exemption are both reached within the first five days of the filing period, petitions towards the advanced degree exemption are selected first. Under the proposed rule, all registrations or petitions would be counted towards the H-1B cap first. Once the cap is reached, USCIS would select registrations or petitions towards the advanced degree exemption. According to USCIS, the proposed change would lead to an estimated increase of up to 16 percent, or about 5,340 workers, in successful H-1B petitioners with a master’s degree or higher from a U.S. institution.

For further information on how this may affect your business, please consult with our attorneys. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).