The US H-1B visa is a non-immigrant visa that allows US companies to employ college graduate level workers in “specialty occupations.” Currently, the H-1B visa has an annual numerical limit “cap” of 65,000 visas each fiscal year, with additional 20,000 for beneficiaries with a U.S. master’s degree or higher. However, starting April 1, 2019 DHS is amending its regulations in favor of a more stringent application process. The new changes are outlined in USCIS’s H–1B Petitions final rule.
The first amendment requires petitioners seeking to file H–1B petitions subject to the regular cap, including those eligible for the advanced degree exemption, to first electronically register with U.S. Citizenship and Immigration Services (‘‘USCIS’’). However, USCIS will suspend the registration requirement for the fiscal year 2020 cap season to complete user testing of the new H–1B registration system and otherwise ensure the system and process are operable. Going further, the final rule also amends the process by which USCIS selects H–1B petitions toward the projected number of petitions needed to reach the regular cap and advanced degree exemption.
Under the current H-1B selection process, if the regular cap and advanced degree exemption are reached in the first five business days that cap-subject petitions can be filed, USCIS randomly selects sufficient H-1B petitions to reach the H-1B 20,000 advanced degree exemption first. Then, USCIS randomly selects sufficient H-1B petitions from the remaining pool of beneficiaries, including those not selected in the advanced degree exemption, to reach the H-1B 65,000 regular cap limit. USCIS then rejects all remaining H-1B cap-subject petitions.
The new rule reverses the selection process. Under the final rule USCIS counts H–1B registrations by first selecting registrations submitted on behalf of all beneficiaries, including those eligible for the advanced degree exemption. USCIS will then select from the remaining registrations a sufficient number projected as needed to reach the advanced degree exemption. The most notable implications of this change is that it will likely increase the number of beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected for further processing under the H–1B allocations.
If you or your organization will need services of an attorney during this H-1B season, please reach out to our office at 612 465 0060.