Washington, D.C., December 3, 2018 – The Department of Homeland Security (DHS) today proposed new rules for the H-1B skilled worker visa program. The proposed rules are set out in a Notice of Proposed Rule Making dated December 3, 2018 (NPRM). The two principal objectives of the NPRM are to create an electronic registration system for employers and revise the lottery rules for allocating H-1B visas.

Employer Registration

The electronic registration system seeks to require employers to first register with U.S. Citizenship & Immigration Services (USCIS) before filing the visa petition for the 2020 H-1B cap season that starts April 1, 2019. USCIS seeks to establish a 14-day registration period beginning in the days immediately before April 1, 2019. Employers would be required to submit one registration for each H-1B petition they seek to submit. USCIS would not accept any employer registrations outside the registration period. Significantly, USCIS warns that under the NPRM, it will have authority to delay the start if the H-1B cap season if the electronic registration system is not yet properly operational. Employers will only be allowed to file one (1) registration for one cap-subject beneficiary, and will have to attest that the beneficiary is the object of a bona fide job offer. . Employers would not be able to substitute beneficiaries. According to the NPRM Executive Summary, one of the main goals of the registration system is to prevent employers from filing a large number of speculative H-1B visa petitions each year.

Most importantly, registered employers would not be able to submit an H-1B visa petition until their registration was selected in the annual H-1B cap lottery.

Lottery Favoring U.S. Master’s Degrees

The H-1B system provides for 20,000 H-1B visas for beneficiaries holding a U.S. Master’s Degree and another 65,000 H-1B visas for all applicants. There is a yearly shortage of H-1B visas. In FY 2019, there were approximately 190,000 new cap-subject H-1B visa petitions filed with USCIS, and only 85,000 new H-1B visas available.

To allocate new H-1B visas, USCIS holds a lottery to select petitions among all applicants. The annual H-1B lottery for new cap-subject petitions provides applicants with a U.S. Master’s degree with two chances at having their visa petition selected: one with the U.S. Master’s Degree cap of 20,000 visas, and one with the general cap of 65,000 visas.

The new lottery system proposed by the NPRM purposes to hold a lottery based on employer registrations, and then require selected employers to file the necessary H-1B visa petition. Additionally, the lottery system will count all visa petitions against the cap of 65,000 new H-1B visas, and then apply any remaining beneficiaries with U.S. Master’s Degrees towards the cap of 20,000 visas for beneficiaries with U.S. Master’s Degrees. This system seeks to skew the visa selection system to favor beneficiaries with U.S. Master’s Degrees.

More Information

Follow our news for additional information and analysis of the NPRM for H-1B visas in the 2020 cap season. I.A. Donoso & Associates, LLC is a law firm based in Washington, D.C. and is recognized as a leading immigration law firm with expertise in visas for EB-5 investors, professionals, and academics.