Earlier this week USCIS published its final rule introducing an online pre-registration process for H-1B cap petitions and changing the order of the two lotteries for visa beneficiaries. In reaction to USCIS’s announcement, Law360 spoke with immigration practitioners, including Mayer Brown’s Paul Virtue, about the impact of these changes on employers and the business community.
The Department of Homeland Security (“DHS”) has posted a final rule regarding the H-1B cap selection process. The rule will be published in the Federal Register on January 31, 2019 and will go into effect on April 1, 2019.
The Final Rule
The posted rule is the final version of the proposed rule titled “Registration Requirement for Petitions Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens,” which was published for public comments on December 3, 2018. During the 30-day comment period, the proposed rule received over 800 public comments. …
Every January, employers go into high gear to prepare H-1B cap-subject petitions for filing on the first business day of April. This year, employers must also monitor for potential regulatory changes to the filing process. On December 3, 2018, the Department of Homeland Security (DHS) published a notice of proposed rulemaking in the Federal Register titled “Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens.” The 30-day public comment period closed January 2, 2019, and employers remain in wait for the impact to this year’s cap-subject filings. While President Trump tweeted about H-1B changes that “are soon coming,” it is not clear whether they relate to the proposed rule.
The proposed rule seeks to accomplish two goals: streamline the H-1B selection and filing process by creating a pre-registration system, and increase the chances of selection for H-1B petitions eligible for the advanced degree exemption by reversing the order in which the cap lotteries are run.
US Citizenship & Immigration Services (the agency responsible for immigration benefits within DHS) received over 800 comments on the proposed regulation, including comments from the US Chamber of Commerce, the American Medical Association, and the American Immigration Lawyers Association. The public comments criticize the proposed timeline and logistics, identify impacts stretching beyond immigration law, and suggest that the proposed rule may face court challenges if implemented:
BREAKING NEWS: USCIS Reaches FY 2019 Cap
USCIS announced today, April 6, 2018, that it has reached the congressionally-mandated 65,000 H-1B visa cap for fiscal year 2019, as well as a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption, known as the “master’s cap.” Our Legal Update from…
The demand for H-1B (specialty occupation) visas normally exceeds the annual 85,000 visa cap by two to three times, thus triggering a random lottery for the available visas. Existing United States Citizenship and Immigration Services (USCIS) regulations prohibit the filing of multiple H-1B visa petitions that are subject to the annual cap for the same individual by an employer or a “related entity,” unless the related entity filing is justified by a legitimate business need. The purpose of the regulation is to prevent employers from trying to increase their chances of winning the H-1B cap lottery by submitting multiple petitions for the same individual for substantially the same position. The penalty for violation of the regulation is denial or revocation of all petitions for the common beneficiary.