Last-Minute Changes to H-1B Visa Process Announced

By Marylou V. Fabbo - Skoler, Abbott & Presser, P.C.

February 4, 2019

Earlier this year, we blogged about potential changes to the H-1B Visa Process, and, finally, the Department of Homeland Security (“DHS”) has posted the final rule amending regulations that govern H-1B cap-subject petitions, including those that may be eligible for the advanced degree exemption.  The rule will go into effect on April 1, 2020, although the electronic registration requirement will be suspended during the upcoming season.

Having A Master’s Degree or Higher Increases Chance of Obtaining H-1B Visa

The H-1B Cap is the total number of petitions that will be allowed each year.  There’s the “Regular Cap,” of 65,000 per year, and the “Advanced Degree Cap,” commonly referred to as the “Masters’ Cap,” of 20,000 per year.  The Masters’ Cap is for non-immigrant workers who have received a master’s degree or higher in the United States.  (An equivalent degree obtained outside of the US does not qualify.) The Regular Cap and the Masters’ Cap are both reached within the first five days in which H-1B cap petitions may be filed, and in prior years, the Masters’ Degree beneficiaries have been selected before the H-1B cap beneficiaries.   In summary, prior to this change, the advanced degree lottery was conducted first, and then cases not selected in that lottery were then placed in the regular lottery.

A change in the lottery process will now favor those with advanced degrees.  Under the new rule, the order of selection has been changed.  The United States Citizen and Immigration Services (“USCIS”) first will select H-1B petitions submitted on behalf of all beneficiaries, including those who may be eligible for the advanced degree exemption.  From the remaining eligible petitions, USCIS will then select a number projected to reach the advanced degree exemption.  This change in order is likely to result in more H-1B Visas awarded to candidates with advanced degrees.   USCS expects the change will increase the number of Masters’ Degree holders by 16%, which comes to about 5,340 workers.   The change in process is likely to make it more difficult to employ non-immigrant workers who hold foreign advanced degrees and those whose positions only require a Bachelor’s degree.

Electronic Registration Requirement Suspended for FY 2020

As expected, USCIS will be suspending the electronic registration requirement for the FY 2020 cap season so that it can complete user testing and ensure the system and process are fully functional.  Once it goes into effect, the electronic registration system will require petitioners seeking to file H-1B cap petitions, including those that may be eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period. Only those whose registrations are selected will be eligible to file an H-1B cap-subject petition. USCIS expects that the electronic registration requirement will reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process.