On April 1, 2019, the Department of Homeland Security’s (DHS) new rule for the lottery process for H-lB cap-subject petitions will become final. The significant changes are as follows:

  1. An electronic registration requirement for U.S. employers wishing to file H-lB cap subject petitions; and
  2. Reversal of the order by which the United States Citizenship and Immigration Services (USCIS) will select petitions under the H-1B cap and the U.S. advanced degree exemptions.

The Electronic Registration Requirement

The good news is that DHS has suspended the electronic registration requirement for this year’s FY2020 H-lB cap with the expectation of implementation for next year’s FY2021 H-lB cap. Therefore, U.S. employers who seek to file an H-lB cap-subject petition in this year’s upcoming FY2020 lottery can follow the current practice of submitting a complete H-lB petition to USCIS.

However, when the electronic registration requirement is put into effect, all U.S. employers will first be required to register electronically with USCIS during a designated registration period. U.S. employers will be required to file a separate electronic registration for each H-lB beneficiary it seeks to sponsor during that fiscal year, and each beneficiary must be identified by name. USCIS will then conduct the annual lottery for H-lB cap subject petitions from the pool of electronic registrations, and will notify employers whose registrations have been selected.

The Reversal of the Selection Order

The reversal of the order by which USCIS will select petitions under the H-lB cap and the U.S. advanced degree exemption will occur during this year’s FY2020 H-lB cap. This change will result in USCIS counting petitions for all applicants (applicants with either a U.S. or non-U.S. bachelor’s degree, a non-U.S. graduate degree, or a U.S graduate degree) toward the number projected to reach the H-lB regular cap of 65,000 visa numbers first. After a sufficient number of petitions have been selected for the H-lB regular cap, USCIS will then select petitions for the 20,000 additional visa numbers allotted to applicants with a U.S. advanced degree. With this reversal of the selection order, applicants with a U.S. or non-U.S. bachelor’s degree or non-U.S. graduate degree will have a decreased chance of having their petitions selected in the lottery. However, USCIS predicts that the process will result in an increase of up to 16% (or 5,340 workers) in the number of selected petitions for those holding U.S. graduate degrees.

The Impact of the Changes

It should come as no surprise that U.S. immigration lawyers have raised the following concerns about the above changes:

  • The ease of the electronic registration process could cause U.S. employers to register many positions that might not eventually qualify for the H-lB visa classification, or that might later be abandoned by the petitioning employer. This increased registration could engender uncertainty for U.S. employers whose registrations are not initially selected in the lottery, making it difficult for them to plan effectively for their workforce hiring needs.
  • U.S. employers in industries where a master’s degree is not typically required could be disadvantaged by the reversal of the selection order.
  • The U.S. health care industry, which is increasingly reliant on the hiring of foreign medical graduates, could also be hampered by the reversal of the lottery selection order.