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

WASHINGTON—The Department of Homeland Security (DHS) announced today a notice of proposed rulemaking that would require petitioners seeking to file H-1B cap-subject petitions to first electronically register with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period. Under the proposed rule, USCIS would also reverse the order by which USCIS selects H-1B petitions under the H-1B cap and the advanced degree exemption, likely increasing the number of beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected for an H-1B cap number, and introducing a more meritorious selection of beneficiaries.

The H-1B program allows companies in the United States to temporarily employ foreign workers in specialty occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelors or higher degree in the specific specialty, or its equivalent. When USCIS receives more than enough petitions to reach the congressionally mandated H-1B cap, a computer-generated random selection process, or lottery, is used to select the petitions that are counted towards the number of petitions projected as needed to reach the cap.

The proposed rule includes a provision that would enable USCIS to temporarily suspend the registration process during any fiscal year in which USCIS may experience technical challenges with the H-1B registration process and/or the new electronic system. The proposed temporary suspension provision would also allow USCIS to up-front delay the implementation of the H-1B registration process past the fiscal year (FY) 2020 cap season, if necessary to complete all requisite user testing and vetting of the new H-1B registration system and process. While USCIS has been actively working to develop and test the electronic registration system, if the rule is finalized as proposed, but there is insufficient time to implement the registration system for the FY 2020 cap selection process, USCIS would likely suspend the registration requirement for the FY 2020 cap season.

By USCIS.GOV
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