Cap-subject US employers and their prospective employees alike have been waiting on edge to find out whether the FY2020 H-1B Cap Season would proceed as before or whether US Citizenship and Immigration Service’s (USCIS’s) recently proposed significant changes would be implemented to take effect before April 2019. The result: the Registration requirement will not take effect in April 2019, but the lottery will be held with the selection process reversed
What does this mean? In effect and as anticipated, US employers should proceed as before to have their H-1B cap cases analyzed, prepared and filed during the first week of April. For FY2020, cap-subject employers will not be required to electronically register their intended H-1B petitions in the lottery. In order to test and refine the system, USCIS decided to suspend the electronic registration requirement for this fiscal year. Before implementing the electronic registration requirement in the future, an announcement will appear in the Federal Register to notify the public.
There will, however, be an important change this cap season. That is, cap-subject petitions will first be chosen from the regular cap of 65,000 and only then will the 20,000 advanced degree exemption petitions be selected. USCIS believes that reversing the selection process will result in a significantly higher number (16% or 5,340 workers) of petitions being chosen on behalf of beneficiaries who possess a master’s or higher degree from a U.S. higher education institution. USCIS states reversing the selection order is in support of the President’s April 18, 2017 Buy American and Hire American Executive Order which directed the Agency to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” Unfortunately, the Rule change doesn’t seem to consider the potentially negative impact on US employers who rely on professionals who possess less than a master’s degree nor employers whose workers are offered an appropriate wage for their profession, but are not the most highly paid overall.
When the electronic registration requirement is implemented, cap-subject US employers who want to file H-1B petitions, including those eligible for the advanced degree exemption, will have to electronically register with USCIS during a specifically designated registration period. Notice of the electronic registration period is to be provided at least 30 days in advance to the start date. USCIS will then select from the electronic registrations to determine which employers may proceed to file their H-1B petitions. For more on this topic, please see my blog post H-1B Cap Season: Important Proposed Changes dated December 4th on Fox Rothschild’s Immigration View blog.
As in prior years, USCIS will post H-1B cap information on its website at www.uscis.gov in advance of the time for filing cap-subject H-1B petitions.