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Immigration Law Blog

Thursday, January 31, 2019

DHS Announces Final Rule for H-1B Program

The Department of Homeland Security (DHS) issued a final rule which will amend regulations governing H-1B cap-subject petitions. The final rule will reverse the order by which USCIS selects H-1B “cap” petitions for processing and will introduce a requirement for electronic registration for those petitioners filing H-1B cap-subject petitions. This rule will be effective April 1, 2019, although the requirement for electronic registration will be suspended for the Fiscal Year 2020 cap season (i.e. that requirement will take effect for next year’s cap filing season).

USCIS will initially select H-1B “cap” petitions submitted on behalf of all beneficiaries and those eligible for the advanced degree exemption starting April 1, 2019. USCIS will then select from the remaining advanced degree exemption eligible petitions. Previously, the advanced degree exemption “mini cap” was selected first. The reverse of this selection order is expected to result in an estimated increase of up to 5,340 (or 16%) workers in the number of selected petitions possessing a U.S. Master’s or a higher degree.

As mentioned above, USCIS will suspend the requirement for electronic registration for this fiscal year’s cap season. However, once implemented, petitioners seeking to file H-1B cap petitions, including H-1B petitions eligible for the advanced degree exemption, will be required to electronically register with USCIS during a designated registration period first. Subsequently, only the selected registrants will be eligible to then file an H-1B cap-subject petition.

For more information on the Final Rule and H-1B cap filing instructions in advance of this year’s filing season, please reference uscis.gov and uscis.gov/news/news-releases/dhs-announces-final-rule-a-more-effective-and-efficient-h-1b-visa-program.


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