DHS has announced its notice of proposed rulemaking pertaining to the H-1B visa program which would affect U.S. businesses submitting H-1B petitions under the annual cap. Chances are high that the new rule will be adopted prior to the start of the new H-1B cap season on April 1, 2019. Under the proposed rule, the government will require petitioners to register all H-1B cap-subject petitions with U.S. Citizenship and Immigration Services (USCIS) electronically during a designated registration period preceding the start of the capped H-1B petitions acceptance. USCIS also wishes to change the order by which it selects H-1B petitions under the cap to increase the number of beneficiaries with a master’s or higher degree from U.S. universities.

Under the proposed new rule, USCIS would be able to temporarily suspend the registration process during a given fiscal year in which their offices experience technical problems with the H-1B registration process and/or the related electronic system.  USCIS is working to finalize the new H-1B registration system by April 1, 2019, but would probably suspend the registration requirement for the upcoming cap season if the electronic system is not fully operational by that time. At present, when sufficient number of the regular H-1B and the advanced degree exemption petitions is received within the first five days of the filing period, the advanced degree petitions are selected prior to the regular H-1B cap-subject petitions. The new process would allow USCIS to count all registrations or petitions towards the number of filings accepted per the projection for an H-1B cap. Upon receipt of sufficient number of petitions for the H-1B cap, the government would then select the petitions towards the advanced degree exemption. This should increase the chances of foreign nationals with graduate degrees from U.S. universities for a coveted H-1B visa. The new registration system would carry an advantage for USCIS of no longer needing to receive hard copy H-1B petitions before conducting its selection process under the cap which should, in turn, reduce the waiting time for the cap lottery outcome for the petitioners and the beneficiaries.

Public comments on the proposed rule will be accepted through January 2, 2019. Be sure to stay in touch with your immigration practitioner regarding the new rule progress and implementation if you plan H-1B petition submission under the upcoming new cap year.