On January 31, 2019, the Department of Homeland Security announced a final rule:

  1. revising how cap-subject H-1B petitions are selected in the random lottery by United States Citizenship and Immigration Services (USCIS); and
  2. implementing an electronic registration requirement for H-1B cap-subject petitioners.

The lottery allocation has been reversed in that USCIS first selects from a pool of regular cap-subject H-1B petitions and petitions eligible for the advanced degree exemption. USCIS will then select from the remaining petitions to fulfill the number of the advanced degree exemption. The advanced degree exemption provides an additional 20,000 visas, beyond the 65,000 available, for H-1B potential beneficiaries having a U.S. master’s degree or higher. The reverse allocation provides those with a U.S. master’s degree or higher with an advantage. USCIS will implement this change this cap-season.

U.S. employers will be required to electronically register each potential H-1B employee by providing USCIS with basic information about the person and the position.

Employers would also be required to attest that they intend to file an H-1B petition for the beneficiary in the position for which the registration is filed. Petitioners would need to file a separate registration for each beneficiary and would be limited to one registration per beneficiary for the same fiscal year.

The Department of Homeland Security will announce the start of the initial registration period at least 30 days in advance. USCIS would conduct the H-1B lottery from the pool of timely-filed electronic registrations, and only those who are selected will be eligible to file a full petition to receive an adjudication. Those selected would be notified they can file an H-1B petition within a designated 90-day filing period. This part of the rule will be suspended for fiscal year 2020.

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