H-1B Cap Registration Rule Clears Federal Review

On January 14, 2019, USCIS sent the final version of the new H-1B cap registration rule to the Office of Management and Budget. Today, the rule has been cleared OMB review, the final step before the rule’s publication and implementation.

For information about the current H-1B cap procedure, please click here. To learn more about the H-1B visa and your eligibility, please click here. The contents of the final rule will remain confidential until the release of the publication to the Federal Register.  Although the changes are not yet public, it is anticipated that the new rules will include the following:

• Employers have to register for the lottery first. In order to register, employers will file a short online form that provides basic information about the company, the job offer, and the prospective foreign employee. A separate form will have to be filed for each individual foreign employee. The registration period will likely occur before the usual April 1 opening day of cap filing.
• USCIS will seek to change the order of the cap lotteries so that advance-degree lottery will run before the regular cap lottery. The purpose is to maximize the number of advanced degree graduates selected for the H-1B cap total cap of 85,000. USCIS has also discussed revising the way cap numbers are allocated, so that advanced degrees and high salaries receive priority.
• Full H-1B petitions and supporting evidence would only be filed for registrations that were selected in the lottery. If the case is selected, employers will be required to submit their cap petitions within a specific timeframe. If not selected, the application should not be submitted at all.
• USCIS may also create a waiting list so additional cases could be filed if the quota is not reached due to rejections, withdrawals, or failure to submit in time.

USCIS has suggested that the online registration component may be postponed until next year, however the reordering of the lotteries is expected to be implemented for FY 2020, which begins April 1, 2019. Regardless of the date of implementation, employers must be prepared to submit a full H-1B cap petition and supporting evidence for each beneficiary as usual.