January 30, 2019
On January 31, 2019, the Department of Homeland Security (DHS) will publish a final rule in the Federal Register which will become effective April 1, 2019 and amend regulations for H-1B Cap-Subject Petitions. The new regulations modify the H-1B Cap-Subject lottery process beginning with the Fiscal Year 2020 lottery, occurring in April 2019, and lay the groundwork for the future implementation of an electronic registration process for H-1B Cap-Subject Petitions beginning in the Fiscal Year 2021 cap season.
H-1B Cap-Subject Lottery Changes Beginning April
As usual, USCIS will begin accepting H-1B Cap-Subject Petitions for the next fiscal year and conduct the H-1B Cap-Subject lottery in April. In previous years, USCIS initially completed the H-1B Master’s Cap lottery and rolled any unselected eligible Master’s Cap Petitions into the H-1B Regular Cap lottery. Beginning in April 2019, USCIS will first consider all FY 2020 H-1B Cap-Subject Petitions (Regular and Masters Caps) in the initial lottery. Once the Regular Cap lottery has been closed, USCIS will conduct a second lottery of only those Advanced Degree, or Master’s Cap, H-1B Petitions that were not selected during the initial lottery, selecting a number projected to reach the Master’s cap. By reversing the order of the lottery selection, USCIS projects a 16% increase in the selection of H-1B Cap-Subject Petitions on behalf of beneficiaries with a master’s degree or higher from a U.S. institution of higher education.
Future Electronic Registration Process
While not yet implemented for Fiscal Year 2020, the regulations also establish a new Electronic Registration Process for H-1B Cap-Subject Petitions. Currently, USCIS is testing the system and will make a formal announcement prior to the future implementation of this new system. Once implemented, petitioners for both the Regular Cap and Master’s Cap processes will electronically register for inclusion in the H-1B Cap-Subject lottery. From these electronic registrations, USCIS will indicate those selected H-1B Cap-Subject Petitions which are eligible to file with the Service. Only those registrations selected by USCIS in the lottery will be required to file a full H-1B Petition with USCIS, which should simplify the process for those employers seeking to participate in the H-1B Cap-Subject lottery.