DHS Publishes Final Rule on Filing and Selection Processes for H-1B Cap Cases; Preparing for the FY2020 H-1B Cap Season

Practical Law Legal Update w-018-7961 (Approx. 5 pages)

DHS Publishes Final Rule on Filing and Selection Processes for H-1B Cap Cases; Preparing for the FY2020 H-1B Cap Season

by Practical Law Labor & Employment

The Final Rule: Registration Requirement and the Selection Process

The Final Rule:

Creates an H-1B registration program for cap-subject petitions. The final rule suspends the registration for the FY2020 cap season that begins on April 1, 2019, to provide time for DHS to develop and test the registration system. This should minimize disruptions during the FY2020 cap season.
Alters the selection process if the DHS receives more H-1B registrations than there are available H-1B visas. The new selection system is effective on April 1, 2019.

This electronic registration process:

Starts at least 14 days before April 1, the date on which H-1B petitions generally can be filed for the new fiscal year (which begins October 1). The registration period would last at least 14 days.
Does not require a fee.
Is mandatory and conducted through the United States Citizenship and Immigration Services (USCIS) website. An H-1B cap-subject petition would only be considered properly filed when it is based on a valid registration selected for that fiscal year.

Under the Final Rule, USCIS will announce on its website:

At least 30 calendar days beforehand, the initial registration period for the upcoming fiscal year. The initial registration period will also be published in a Notice in the Federal Register.
The final registration date in any fiscal year.
Any subsequent reopening or reclosing of the registration period.

To prevent speculative or placeholder registrations, petitioning employers:

May not submit more than one registration for the same beneficiary during a fiscal year.
Must attest to their intent to file an H-1B petition for the beneficiary in the job for which the registration is filed.

A petitioner may submit a registration:

During the initial registration period only if the requested start date for the beneficiary is the first day for the applicable fiscal year (rather than the first business day of the fiscal year, as required by the NPR).
For a validity date after the first day for the applicable fiscal year (as long as the registration date is no more than six months before the requested start date) if USCIS keeps the registration period open beyond the initial registration period, or re-opens the registration period.

In the event USCIS receives more registrations than there are available H-1B visas, the Final Rule changes the order in which registrations are counted towards the projected number needed to reach the H-1B allocations. Historically, USCIS counted petitions filed for beneficiaries with a master's degree or higher under the H-1B advanced degree exemption first until the projected number of petitions needed to meet the advanced degree exemption allocation (20,000) was reached, before beginning to select petitions filed for the regular cap (65,000). Under the Final Rule:

USCIS will first select the number of registrations estimated to meet the regular H-1B cap from the entire pool of registrations.
Once the regular cap projected number is reached, USCIS would then count registrations for petitions that are eligible for the advanced degree exemption but were not selected under the regular cap toward the projected number needed to reach the advanced degree exemption allocation.
If selected, a petitioner will have a filing period of at least 90 days to prepare and file the petition (rather than the 60 days allotted under the NPR).

Annual H-1B Cap Season for FY2020 Begins April 1st

H-1B visas are popular with employers because of their broad applicability, but the limited availability on new H-1B petitions each year creates pressure on employers seeking to employ foreign workers.

The limited availability of H-1B visas is known as the H-1B cap. For more information on the H-1B cap and its impact on employers, see Practice Note, The H-1B Nonimmigrant Visa Classification: The H-1B Cap.

Employers may generally begin requesting new H-1B visas six months (April 1st) before the fiscal year starts on October 1st, and may continue to file cap-subject H-1B petitions until the annual cap is reached. In the past six years, however, the H-1B cap has been met by April 7th, in the first week that USCIS accepted new H-1B petitions (see, for example, Legal Update, USCIS Reaches the Congressionally-Mandated H-1B Statutory Cap for FY2019). Therefore, to maximize their access to the supply of new H-1Bs, employers with foreign workers requiring H-1B status to begin or continue working for the employers should file the H-1B petitions as early as possible. Petitions for new H-1B visas in FY2020 may be filed (received by USCIS) between Monday, April 1, 2019 and Friday, April 5, 2019. If USCIS receives enough qualifying H-1B petitions to satisfy the H-1B cap during the filing period, it will:

Conduct a random selection (called a lottery) to identify the petitions to be processed. For FY2020, USCIS will follow the new selection process described in the Final Rule (see The Final Rule: Registration Requirement and the Selection Process).
Reject petitions that are not selected.
Stop accepting cap-subject H-1B petitions once it has received a sufficient number to satisfy the cap.

Before filing the H-1B petition, employers must obtain a certified Labor Condition Application (LCA) from the DOL. For more information on LCA requirements, see Practice Note, The H-1B Nonimmigrant Visa Classification: Labor Condition Application.

If approved, the H-1B visa approval allows the foreign worker to be employed by the petitioning employer in the job described in the H-1B petition no earlier than October 1, 2019 (as requested in the petition) for up to three years, with the possibility for further extensions or amendments to the H-1B status (see Practice Note, The H-1B Nonimmigrant Visa Classification: Validity Period of H-1B Approval).

Employers should also be aware that the H-1B visa classification continues to be the object of criticism and stringent review by the current administration. Policy changes instituted during 2017 included scrutiny for entry level jobs and protecting US workers from discrimination favoring foreign workers.

Practical Law has a collection of resources to help employers develop strategies for preparing and filing H-1B petitions for their foreign workers. For more information and links to these resources, see The H-1B Visa Classification Toolkit.

Employers that are unable to file an H-1B petition, or are unsuccessful in obtaining H-1B status for their foreign workers, may find alternative nonimmigrant visa status options in Practical Law's Employer Options When H-1B Visas Are Not Available Checklist.

DHS Publishes Final Rule on Filing and Selection Processes for H-1B Cap Cases; Preparing for the FY2020 H-1B Cap Season | Practical Law