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H-1B Visas – New H-1B Cap Registration Rules and Other Potential Changes

November 11, 2019

U.S. Department of Homeland Security

The U.S. Department of Homeland Security (DHS) published a final rule on January 11, 2019, introducing electronic registration requirement for employers seeking to file H-1B cap-subject petitions. The final rule went into effect on April 1, 2019, though the electronic registration requirement was suspended Fiscal Year 2020 (October 1, 2019 – September 30, 2020) to allow USCIS to complete user testing and ensure the system and process are fully functional.

The rule requires 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. It also switches the order of the regular and advanced-degree cap lotteries to maximize the number of U.S. advanced-degree holders selected for H-1B employment. Only employers whose registrations are selected will be eligible to file an H-1B cap-subject petition.

On November 8, 2019, USCIS announced a final rule that will require a $10 registration fee for petitioners seeking to file H-1B cap-subject petitions. The rule is effective December 9, 2019, and the fee will be required when registrations are submitted for the Fiscal Year 2021 Cap season. 

USCIS Director, Ken Cuccinelli, has stated that his agency intends to have the system in place for the Fiscal Year 2021 Cap season, subject to continued testing of the system. A formal announcement regarding when the registration process will be instituted for Fiscal Year 2021 is expected in the coming months.

The Trump Administration has focused on the H-1B visa category and has implemented administrative processing changes, including revised definitions of “specialty occupation” and “employer-employee relationship.” Future changes it is considering include ending employment authorization for certain H-4 spouses of H-1B nonimmigrants.

For more information about this and other immigration issues, please contact the author of this alert, James G. Aldrich, Jr., at jaldrich@dykema.com or 248-203-0583.

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