Department of Homeland Security Proposes Changes to H-1B Cap-Subject Petitions

November 30, 2018

[Updated Dec. 6, 2018]

On December 3, 2018, the U.S. Department of Homeland Security (DHS) published proposed policy changes which may impact H-1B cap petitions. DHS is accepting public feedback until January 2, 2019, and will then determine what, if any, action to take.

Key proposed changes to H-1B cap petitions are:

  1. Electronic Registration: This proposed change would require employers wanting to file H-1B cap petitions to register electronically with the U.S. Citizenship and Immigration Services (USCIS) for each sponsored foreign national employee in lieu of filing a complete H-1B cap petition upfront. This would be a registration process with no upfront filing fees, forms or documentation. If selected in the registration process, employers would then have 60 days to secure an LCA and file its H-1B cap petition with USCIS.
  2. Order of the H-1B lottery selection: Currently, H-1B cap petitions filed under the master’s or advanced degree cap (i.e. a qualifying U.S. master’s degree or higher) are selected before the H-1B regular cap (e.g., U.S. or foreign bachelor's degree or foreign master's degrees or higher). The proposed change would reverse that order, namely petitions for the H-1B regular cap will be selected first, and then petitions towards the master’s or advanced degree cap will be selected. USCIS estimates this change will result in a 16 percent increase in the number of selected H-1B cap petitions for employees with a qualifying U.S. master’s degree or higher.

USCIS has noted that they intend to implement these changes for the FY 2020 H-1B cap selection process (i.e. for the cap season expected to start April 1, 2019). However, they have also included provisions to temporarily suspend electronic registration if there is insufficient time to implement and test the new systems ahead of the FY 2020 H-1B cap season.

How Should You Proceed?

Considering no finalized policy changes and the government’s express statements that the policy may not be implemented in time, Global Immigration Associates (GIA) recommends that you continue to work on your H-1B cap preparation per usual. As such, customers should be prepared to file H-1B cap petitions the first five business days of April with USCIS as in years past.

While the public comment period ends on January 2, 2019, DHS has not provided a timeline on when they will reach their final decision on any H-1B process changes. GIA and Envoy are closely monitoring the situation. If or when any policy changes take place, we will immediately provide further guidance and instruction.

Envoy is pleased to provide you this information, which was prepared in collaboration with Ryan Bay, who is the Director of Legal Operations at Global Immigration Associates, P.C. (www.giafirm.com), Envoy’s affiliated law firm.

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