AILA Quicktake #259: DHS Publishes Final Rule on H-1B Cap-Subject Petitions

1/30/19 AILA Doc. No. 19013133. Business Immigration, H-1B & H-1B1 Specialty Occupation
Diane Rish, AILA’s Associate Director of Government Relations, explains the final rule published by the Department of Homeland Security governing petitions filed under the H-1B visa lottery.

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Video Transcript

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Today, the Department of Homeland Security published a final rule in the Federal Register
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that amends the regulations governing petitions filed under the H-1B visa lottery.
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The final rule makes two major changes: it adds an electronic registration requirement
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for petitioners seeking to file H-1B cap-subject petitions,
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and it reverses the order by which USCIS will select petitions under the H-1B cap
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and the advanced degree exemption. Under the final rule, USCIS will count
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all applicants towards the regular cap first, then select applicants towards
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the advanced degree exemption second.
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The final rule will go into effect on April 1, though the Department of Homeland Security
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will suspend the electronic registration requirement for this year’s H-1B cap.
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This means that H-1B cap-subject petitions filed as part of the FY2020
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H-1B cap will need to be filed using the same process as in prior years, with petitioners
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submitting a complete H-1B petition to USCIS,
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together with filing fees, in order to be eligible for selection in the FY2020 visa lottery.
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AILA welcomes the suspension of the electronic registration requirement
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for this year’s H-1B cap filing season in order to allow USCIS sufficient time
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to complete the necessary user testing and to ensure the system and process are fully
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functional before they are implemented. AILA raised this concern during the notice
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and comment period, and we would like to thank the hundreds of AILA members who
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submitted a comment to USCIS as part of AILA’s H-1B comment campaign.
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Thanks to you, USCIS heard our concerns. Per the final regulation, DHS anticipates that
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the registration requirement will be implemented next year, starting with the FY2021 H-1B cap.
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USCIS has indicated that it will engage in stakeholder outreach and provide training
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to the public on the registration system in advance of its implementation, so stay tuned.
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The second major change, the reversal of the order by which USCIS selects petitions
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under the H-1B cap and the advanced degree exemption, will take place this year.
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USCIS anticipates that this change will result in an increase of up to 16%
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or 5,340 workiers in the number of selected petitions for H-1B beneficiaries
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with a master’s degree or higher from a U.S. institution of higher education.
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Practitioners who are planning to file H-1B cap petitions this year should check out AILA’s
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web seminar, entitled “Preparing for H-1B Season FY2020: Filing Tips and Pitfalls to Avoid”.
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If you need more details about the final regulation,
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don’t miss AILA’s Practice Alert,
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“DHS Publishes Final Regulation Governing H-1B Cap-Subject Petitions.”

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