On November 30, 2018 the Department of Homeland Security (DHS) announced a proposal to amend the regulations regarding the allocation process for H-1B cap-subject petitions. Under the proposed rule, all U.S. employers seeking to file H-1B cap-subject petitions would need to first electronically register with U.S. Citizenship & Immigration Services (USCIS) during a designated registration period. USCIS would then conduct a lottery from the pool of electronic registrations, and only those selected would be eligible to file a petition for adjudication.

The number of visas available under the H-1B program is capped at 65,000 annually, with certain employers and petitions being exempt from this cap. An additional 20,000 visas are reserved for individuals who hold advanced degrees from U.S. higher education institutions. Because demand for visas far exceeds the number of visas available, a lottery system has been used to determine which petitions are selected for processing.

Along with requiring electronic registration, the new proposal would also reverse the selection process. Under the proposed rule, all qualified registrants would participate in the lottery to fill the regular 65,000 cap first, and then those not selected who hold advanced degrees would participate in the lottery for the advanced degree cap.

If the rule is finalized as proposed, but there is insufficient time to implement the new registration system in time for the opening of the Fiscal Year 2020 H-1B cap filing season on April 1, 2019, USCIS has announced that it would likely suspend implementation of the new registration system.

This rule is a proposal only and is not yet in effect. The attorneys at Stern & Curray will continue to monitor the situation and keep you informed.