USCIS Proposes Overhaul of H-1B Lottery for upcoming “cap” season
On November 30, 2018, U.S. Department of Homeland Security (“DHS”) proposed a regulation that would substantially alter the processes for filing cap-subject Petitions for H-1B status beginning with the 2020 fiscal year. In summary, the proposed regulation would require – as to cap-subject H-1B filings only – Petitioners to electronically register with U.S. Citizenship and Immigration Services (“USCIS”) during a designated preregistration period.
At the end of the pre-registration period, USCIS would then conduct a lottery to select the cases to be adjudicated under the annual numerical cap on new H-1B filings. After a cap-subject H-1B is selected through the lottery and notification sent, then the Petition for Non-immigrant Worker (“I-129”) and accompanying documents would be filed with USCIS. Only those cases selected through preregistration would be accepted for review.
Under the proposed regulation, this process would be reversed. USCIS would first conduct a lottery of all preregistered cap-subject H-1Bs and choose 65,000 from the combined pool of U.S. master’s degree holders and everyone else and then conduct a second lottery limited to holders of U.S. master’s degrees. While this change may seem benign, in practice, it will disproportionately favor Petitions filed on behalf of holders of U.S. master’s degrees and be unfavorable to beneficiaries with both U.S. bachelor’s degrees or foreign degrees.
USCIS is seeking to implement the regulation for the upcoming H-1B cap season (FY 2020). This refers to cases filed on April 1, 2019 for effective dates of October 1, 2019. The comment period for the regulation ends on January 3, 2019. Thereafter, DHS is obligated to review the public comments on the proposed regulation before it can finalize and implement the regulation.
At the same time, DHS must prepare and test the technology infrastructure required to administer the new system. And, on top of these requirements, litigation aimed at stopping the regulation is likely. For this reason, there is doubt as to whether USCIS will be able to roll-out the regulation in time for the upcoming “cap” season.
We cannot predict whether the preregistration regulation will go “live” in time for this year’s filings. USCIS has stated that it will provide thirty days’ advance notice regarding the implementation of the new regulation. USCIS has also announced that, if pre-registration is implemented, the registration period would begin at least fourteen calendar days before the first day for filing of Petitions for the coming fiscal year (April 1) and that the registration period would be open for not less than fourteen calendar days. Once the preregistration period is closed, it is estimated that the lottery selection process and notification will take approximately 30 days. At the end of the 30-day selection and notification period, preregistrants chosen through the lottery will begin to file Petitions with USCIS.
With this uncertainty looming over the process, the Law Office of Matthew I. Hirsch is preparing for another busy “cap” season. Last year, on April 1, 2018, this office filed its largest number of cap-subject Petitions ever. Roughly 65% of Petitions filed were selected for adjudication. Of those selected for adjudication, nearly all were approved. Despite more restrictive adjudications and higher percentages of denials, we continue to achieve successful results for clients.