Washington, DC. Department of Homeland Security (DHS) is going to propose a merit-based rule to benefit graduates (master’s and PhDs) of U.S. institutions of higher education and a mandatory online pre-registration requirement for cap-subject H-1B programs. In November, USCIS Director had said they were proposing this new rule.
On December 3rd, USCIS published a notice of proposed rule making. The proposed rule would require petitioners seeking to file H-1B cap-subject petitions to first electronically register with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period. Under the proposed rule, USCIS would reverse the order by which USCIS selects H-1B petitions under the H-1B cap and the advanced degree exemption, it would count all registrations or petitions towards the number projected as needed to reach the H-1B cap first. Once a sufficient number of registrations or petitions have been selected for the H-1B cap, USCIS would then select registrations or petitions towards the advanced degree exemption. This change will increase the number of beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected for an H-1B cap number, and the rule will also introduce a more meritorious selection of beneficiaries.
Foreign students with Master’s or PhD degree from U.S. public or private (not-for-profit) colleges and universities will benefit in lottery process
For the last several years, H-1B cap and the advanced degree exemption quotas are both reached within the first five business days that H-1B cap petitions may be filed, the advanced degree exemption is selected prior to the H-1B cap. The proposed rule would reverse the selection order and count all registrations or petitions towards the number projected as needed to reach the H-1B cap first. USCIS claims that this proposed change would increase the chances that beneficiaries with a master’s or higher degree from a U.S. institution of higher education would be selected under the H-1B cap and that H-1B visas would be awarded to the most-skilled and highest-paid beneficiaries. It states that the proposed process would result in an estimated increase of up to 16 percent (or 5,340 workers) in the number of selected H-1B beneficiaries with a master’s degree or higher from a U.S. institution of higher education.
USCIS expects that shifting to electronic registration would reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process for USCIS. The proposed rule would help alleviate administrative burdens on USCIS since the agency would no longer need to physically receive and handle hundreds of thousands of H-1B petitions and supporting documentation before conducting the cap selection process. This would help reduce wait times for cap selection notifications. The proposed rule also limits the filing of H-1B cap-subject petitions to the beneficiary named on the original selected registration.
How the pre-registration will be conducted?
DHS proposes to establish a registration period that would begin at least fourteen calendar days before the first day of filing in each fiscal year. The registration period would last for a minimum period of fourteen calendar days. USCIS states that it would give the public at least 30 days advance notice of the opening of the initial registration period for the upcoming fiscal year via
the USCIS website. USCIS will also separately announce the final registration date in any fiscal year on the USCIS website. If USCIS determines that it is necessary to re-open the registration period, it would announce the start of the re-opened registration period on its website before the start of the re-opened registration period. With respect to the initial registration period, DHS states that it is also considering announcing the opening date of the first registration period in the final rule resulting from this proposed rule to allow for maximum visibility for the regulated public.
The proposed rule includes a provision that would enable USCIS to temporarily suspend the registration process during any fiscal year in which USCIS may experience technical challenges with the H-1B registration process and/or the new electronic system. The proposed temporary suspension provision would also allow USCIS to up-front delay the implementation of the H-1B registration process past the fiscal year (FY) 2020 cap season, if necessary to complete all requisite user testing and vetting of the new H-1B registration system and process. USCIS states it has been actively working to develop and test the electronic registration system, if the rule is finalized as proposed, but there is insufficient time to implement the registration system for the FY 2020 cap selection process, it would likely suspend the registration requirement for the FY 2020 cap season.
About the H-1B Program
The H-1B program allows companies in the United States to temporarily employ foreign workers in specialty occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelors or higher degree in the specific specialty, or its equivalent. When USCIS receives more than enough petitions to reach the congressionally mandated H-1B cap, a computer-generated random selection process, or lottery, is used to select the petitions that are counted towards the number of petitions projected as needed to reach the cap.
(last updated December 4, 2018)
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Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice.