Today, DHS released the final rule amending the regulations governing H-1B cap-subject petitions, effective April 1, 2019. The rule fundamentally changes the H-1B Cap Process in two ways: 1) it reverses the order by which the agency selects H-1B petitions under the regular cap and the advanced degree exemption (“U.S. Master’s Cap”); and 2) it adds an electronic registration requirement for employers seeking to file H-1B cap-subject petitions. Though USCIS will be suspending electronic registration for the fiscal year 2020, meaning there will be no changes as to how cap-subject petitions are filed this year, however, reverse allocation will take effect. Under the current process, USCIS conducts the “U.S. Master’s Cap” lottery first. Advanced degree petitions that are not selected are then entered into the “regular cap” lottery. Effective April 1, 2019, USCIS will conduct the “regular cap” lottery first and the “U.S. Master’s Cap” second. The agency asserts that the change would likely “increase the number of individuals with a master’s or higher degree from a U.S. institution of higher education.” Alternatively said, the change will likely reduce non-master’s applicants from getting into the cap.
USCIS’ change of prioritizing the selection of advanced degree professionals will likely be challenged in court as it appears to be contrary to statute. Until a court issues an injunction, or determines that the change is contrary to statute, reverse allocation will be the norm moving forward. We will share updates with our clients as they unfold.
Our second H-1B Cap Webinar is scheduled for Thursday, February 14th at 11am PST/2pm EST. The webinar, hosted by our Managing Partner David Brown, will provide an overview of the H-1B process, the new regulation and its consequences, and our approach to ensuring successful outcomes for all H-1B filings. Register HERE, if you have not already done so.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **