DHS Proposes Merit – Based Rule for More Effective and Efficient H-1B Visa Program

Last week, The Department of Homeland Security (“DHS”) published a proposed regulation that would significantly reform the H-1B cap selection (lottery) process.

The proposed regulation would introduce two main changes:

  • Pre-registration by employers for the H-1B lottery;
  • Flipping the order of the two H-1B lotteries.

Pre-registration by employers for the H-1B lottery:

H-1B employers would be required to pre-register electronically – for each beneficiary – for the H-1B cap lottery, prior to filing petitions with USCIS for adjudication. Petitioners cannot list multiple beneficiaries on a single registration in any given fiscal year. There will be no filing fee for the electronic registration.

DHS proposes to establish a registration period that would begin at least 14 calendar days before the first day of filing in each fiscal year. The registration period would last for a minimum period of 14 calendar days. USCIS would give the public at least 30 days advance notice of the opening of the initial registration period for the upcoming fiscal year via their website.

Once selected in the pre-registration process, petitioners would have a period of at least 60 days to properly file a completed H-1B cap-subject petition for the selected beneficiary.

Currently, employers are required to submit full petitions with supporting evidence for placement in the H-1B lottery program. Under the new proposal, employers would submit a full petition to USCIS only if the beneficiaries gets selected during the pre-registration process. DHS proposes this new process to reduce costs for petitioners who currently spend significant time and resources preparing petitions and supporting documentation for each intended beneficiary without knowing whether such petitions will be accepted for processing by USCIS.

Flipping the order of the two H-1B lotteries:

H-1B visas are capped at 85,000 per year, which include 20,000 for applicants with a U.S. Master’s Degree or higher. Under the current system, applicants with a U.S. Master’s Degree or higher are first run through a 20,000 “Master’s Cap” sub-lottery. Then, the unselected applications are put into the main 65,000-visa lottery pool.

The proposed change would flip the order, put the higher-educated workers into the main 65,000-visa lottery pool first, and any left-over petitions would go into the 20,000 “Master’s Cap” lottery. This would increase the chances for applicants with a U.S. master’s or higher degree of being selected for USCIS adjudication.

Amit Solanki, Immigration Executive

Keywords: H-1B, Cap, Lottery, Petitions, USCIS

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