Final H-1B Cap Regulation: DHS to Reverse Order of Regular and Advanced-Degree Cap Lotteries and Postpone Online Cap Registration until 2020
|The Department of Homeland Security (DHS) has announced the final H-1B lottery regulation that is expected to be published in the Federal Register shortly. The regulation reverses the order in which the agency selects H-1B cap-subject petitions to increase the number of advanced-degree holders selected. For the upcoming FY2020 filing season, the agency will first conduct the general H-1B cap lottery to select enough petitions to meet the 65,000 annual H-1B cap. It will then run a second lottery to select enough qualifying petitions to meet the cap exemption of 20,000 for holders of U.S. advanced degrees. DHS estimates that the change will yield a higher proportion of advanced-degree workers, one of the key goals of the Trump Administration’s Buy American, Hire American executive order. Specifically, DHS estimates that the change will result in an increase of up to 16% 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.
DHS has decided to postpone the implementation of an online H-1B cap registration system until the FY2021 filing period (i.e. until the H-1B cap deadline that falls in April 2020). DHS has deferred the online registration system until next year so the agency can continue to develop and test it. Once the system is implemented, employers would file full H-1B cap petitions only for registrations selected in the lottery. If a registration were selected, the employer would have at least 90 days to file its cap petition. DHS is expected to provide further details on the operation of the system and key filing periods early next year.
In the meantime, employers should continue to prepare as usual for the FY2020 H-1B cap filing window, which begins on April 1, 2019.