On 01/30/2019 the Department of Homeland Security (DHS) posted the final rule amending regulations governing H-1B cap-subject petitions. This rule implements two important changes to the annual H-1B lottery system - one that will take effect this year and the other that will not be implemented until next year for the FY2021 H-1B cap cases. This rule only makes changes to the H-1B lottery process. There are no changes to H-1B petitions for extensions, changes of employer, or amendments.
Starting this year, the U.S. Citizenship and Immigration Services (USCIS) will reverse the order in which it conducts the H-1B lotteries. In the past, the USCIS first conducted the lottery for the 20,000 H-1B visas reserved for individuals who have earned a master's degree or higher from a U.S. university. Any petitions not selected in that lottery were then be included in the lottery for the remaining 65,000 H-1B visas. Beginning this year, the USCIS will reverse the order in which the lotteries are conducted. It will first conduct the lottery for the 65,000 visa numbers drawing from the pool of ALL of the H-1B cap-subject petitions submitted. Thereafter, any petitions for individuals not selected in that lottery who have earned a master's degree or higher from a U.S. university will be included in the advanced degree lottery for the additional 20,000 visa numbers. The USCIS estimates that this will result in an estimated increase of up to 16% (or 5,340 workers) in the number of selected petitions for H-1B beneficiaries with a master's degree or higher from a U.S. institution.
Beginning next year for the FY2021 H-1B cap cases, the USCIS will implement a pre-registration process by which all of the potential H-1B cap cases will be registered with the USCIS, which will then conduct the lotteries. Upon completion of the lottery, the USCIS will accept H-1B petitions for those individuals selected. In some ways, this will benefit employers who will only have to pay for the preparation of H-1B petitions that have already been pre-selected in the lottery based on the new registration system. However, there is a possibility that this new system could put some employers at a disadvantage.
The new registration process is a result of the Trump administration's "Buy American, Hire American" Executive Order, one of the stated purposes of which is to "suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries." There has also been some talk of H-1B visa allocations going to the "most worthy" positions. Who at the USCIS is determining worthiness? Based on what criteria? Will small employers be worthy enough? Will positions offered by staffing companies? At this time it is too soon to tell. In fact, there is currently no direction on how the registration process will be implemented for next year's H-1B quota. As additional information becomes available, I will keep you apprised.