Final Rule, Filing Deadline for H-1B Visas Announced
Author: Robert S. Teachout, XpertHR Legal Editor
February 11, 2019
The US Citizenship and Immigration Services (USCIS) issued a final rule amending the process by which the agency selects H-1B petitions to reach the regular cap and advanced degree exemption. The final rule reverses the order in which USCIS selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, and introduces an electronic registration requirement for employers seeking to file H-1B cap-subject petitions. The final rule will be effective on April 1, 2019.
The H-1B visa category allows US employers to temporarily hire foreign workers to work in specialty professional occupations. Congress sets limits (the "cap") on the number of workers who may be granted initial H-1B nonimmigrant visas each fiscal year.
Under the new rule, USCIS will first select H-1B petitions submitted on behalf of all beneficiaries, including those who may be eligible for the advanced degree exemption. Then USCIS will select a number of petitions projected to reach the advanced degree exemption from the remaining eligible petitions. Under the previous system, petitions for the advanced degree exemption cap were not included in the selection pool for the regular cap.
Changing the order in which petitions are selected will likely increase the total number of petitions selected under the regular cap for H-1B beneficiaries who possess a master's or higher degree from a US institution. "US employers seeking to employ foreign workers with a US master's or higher degree will have a greater chance of selection in the H-1B lottery in years of excess demand for new H-1B visas," said USCIS Director L. Francis Cissna.
Although the final rule establishes an electronic registration requirement, USCIS is suspending the requirement for the FY 2020 H-1B cap season in order to complete testing of the system and ensure it functions properly. Once implemented, petitioners for an H-1B visa will be required to first electronically register with USCIS during a designated registration period.
USCIS also announced that it will begin accepting H-1B visa petitions on April 1 for FY 2020 and the new selection order will apply. Employers that hope to hire foreign workers under the H-1B program should prepare to file as close to April 1 as possible. In recent years, USCIS has reached its cap on H-1B visa petitions within five days.