DHS Releases Final Rule Amending Regulations Governing H-1B Cap-Subject Petitions


The Department of Homeland Security (DHS) released an advanced copy of the Final Rule titled “Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap Subject Aliens” that changes the order in which U.S. Citizenship and Immigration Services (USCIS) selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, and implements an electronic registration process for H-1B cap petitions. The rule will go into effect on April 1, 2019. However, USCIS stated that the registration requirement will be suspended for the fiscal year 2020 cap season to enable the Service to ensure full functionality of the system.


By way of background, each fiscal year a total of 85,000 H-1B visas are made available, 20,000 of which are set aside for U.S. advanced degree holders. Historically, in order to have petitions considered in the H-1B lottery in a given fiscal year, employers had to file a fully-prepared petition with USCIS during the first five (5) business days of April. If more petitions were filed in the first five days than there were H-1B visas available, USCIS would run a two-step lottery, first for the 20,000 advanced degree H-1Bs and then for the remaining 65,000 H-1Bs. The new rule brings two significant changes to this process. First, it implements a pre-registration period where applicants will submit preliminary information which will then be run through the lottery and selected cases will then file full petitions with USCIS. Second, the new rule changes the manner in which the lottery is run.

Although the pre-registration requirement has been suspended for FY2020, the portion of the rule switching the order in which the lottery is run will remain in effect. In sum, USCIS will run petitions (or registration applications for years the registration process is in effect) through the lottery process, first selecting all individuals through the regular cap of 65,000 visas and then selecting the projected number of petitions needed to reach the advanced degree exemption through the second lottery among U.S. only advanced degree holders who were not selected in the regular cap lottery. The agency has stated that reversing the order in which the lottery is run will likely increase the probability of selection for H-1B advanced degree beneficiaries.

The final rule also introduces and details the registration requirement for H-1B petitioners, which, once implemented, will require all petitioners who seek to hire a cap-subject H-1B worker to register for each prospective H-1B worker for whom they seek to file a cap-subject H-1B petition. The registration period will last a minimum of 14 calendar days and only those petitioners whose registrations are selected may proceed to complete and file an H-1B cap-subject petition (during a 90-day period starting on April 1). The petitioners whose filings are selected in the lottery will be notified electronically. DHS believes that registration process will result in a more efficient and cost-effective administration of the H-1B cap selection process.


As mentioned above, parts of the Rule will take effect on April 1, 2019. This means that USCIS will implement the change to the cap allocation selection process starting with the FY2020 cap season (beginning on April 1, 2019). The registration process is expected to be implemented for FY2021, however, the regulations provide that USCIS retains the ability to suspend the registration process in any given fiscal year (as it has done for the FY2020 cap season). Finally, the rules states that USCIS will announce the start of the initial registration period at least 30 calendar days in advance of such date.