New H-1B Registration Regulation Finalized But Suspended

The Department of Homeland Security's new H-1B registration and filing process, first proposed in December, has been confirmed for implementation on April 1st in a recent final rule. Some changes were made to the proposed text, as DHS had taken into account public feedback. Notable points of the final rule include the confirmation of a cap selection system that favors advanced degree holders and the new electronic registration system.

To begin the new H-1B cap registration process, basic information need to be submitted. This information includes the foreign worker's name, date of birth, country of birth, country of citizenship, and passport number. Also, employer's name, employer identification number (EIN), and their mailing address are needed. Registration is open for a period of time, announced by USCIS beforehand at least 30 calendar days before the start date of registration.

USCIS then randomly selects H-1B petitions in a lottery process and notifies the petitioner. As was proposed, the order that the H-1B caps are filled has been reversed. Both regular (Bachelor's) and advanced degree (Master's and above) holders will first be counted against the regular degree cap. Then, the remaining unselected advanced degree holders will be counted against the advanced degree cap. This change gives advanced degree holders better chances of receiving a visa number. This change surely reflects President Trump's 'Buy American and Hire American' order, in which DHS is ordered to ensure H-1B visas are given to the most-skilled or highest-paid beneficiaries. DHS estimates this change will result in selection of up to 16% more advanced degree petitions. Anyone not selected is put on a wait list in case USCIS needs more petitions to fill the caps.

Those that are selected are assigned a set filing period to send in their H-1B applications. These filing periods were initially proposed to be at least 60 days. It has been changed to at least 90 days in this final rule.

Note that while the final ruling will go into effect come April 1st, electronic registration will not be used for the fiscal year 2020 H-1B registrations. DHS explains that this is to complete user testing and ensure systems are functional. Hence, employers must still submit the full H-1B petitions to USCIS this April.

DHS had proposed that the requested start date for the beneficiary be the "first business day of the fiscal year". Noting from feedback that this would affect cap-gap protection for petitioners and beneficiaries, DHS removed the word "business" from the text. The provision will instead refer to the first day of the applicable fiscal year. 

These are huge changes to the H-1B filing process, especially due to the new electronic registration system. Petitioners and beneficiaries should stay tuned for further updates and instructions so that they are prepared for these new processes. USCIS will also announce initial implementation of the registration process in the Federal Register before the H-1B cap season.