Department of Homeland Security New H-1B Lottery Rule Fiscal Year 2020

H-1B Visa

The Department of Homeland Security on January 30, 2019 published a final rule in the Federal Register that amends the regulations governing petitions filed under the H-1B visa lottery.

The final rule makes two major changes:

First, it adds an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions, and it reverses the order by which USCIS will select petitions under the H-1B cap and the advanced degree exemption. Under the new rule, USCIS will count all applicants towards the regular cap first, and then select applicants towards the advanced degree exemption second.

The new rule will go into effect on April 1, however the Department of Homeland Security will suspend the electronic registration requirement for this year’s (2020) H-1B cap.

This means that H-1B cap-subject petitions under the FY2020 H-1B cap will be filed using the same process as in prior years.  Petitioners will submit complete H-1B petitions to USCIS, together with filing fees, in order to be eligible for selection in the FY2020 visa lottery.

Per the final regulation, DHS anticipates that the registration requirement will be implemented next year, starting with the FY2021 H-1B cap. USCIS has indicated that it will engage in stakeholder outreach and provide training to the public on the registration system in advance of its implementation, so stay tuned.

The second major change is to reverse the order by which USCIS selects petitions under the H-1B cap and the advanced degree exemption.  It will start this year. USCIS anticipates that this change will result in an increase of up to 16% or 5,340 workers in the number of selected petitions for H-1B beneficiaries with a master’s degree or higher from a U.S. institution of higher education.

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