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USCIS recently published a proposed rule that would change the H-1B Cap Filing Process. In the past, employers filing H-1B cap petitions would directly send the completed H-1B packet to USCIS. If the case was selected, USCIS would adjudicate the petition, and if it was not selected, USCIS would return the entire application to the employer.

Under the new proposed rule, employers planning to file H-1B petitions for the next fiscal year will be required to pre-register with USCIS electronically during a designated registration period. Only selected cases would file a completed I-129 petition with USCIS for adjudication. Unselected registrations would be kept on reserve in the government’s system and used later if needed to meet the quota cap.

It is unlikely that the rule will be implemented for this year’s lottery starting on April 2019, as the government needs to change the rules and procedures which will take time. More likely the registration would begin for the following fiscal year filing on April 1, 2020. Hopefully, they will make an announcement soon.

Changes in H-1B Visa Lottery Selection Order under the proposed rule:

-Current H-1B lottery process: US Master’s degree holders are selected first to fill the 20,000 master’s quota. US Master’s cases not selected are added to the regular quota pool (i.e. bachelor’s degree cases) and the lottery was conducted for the entire pool to meet the 65,000 cap quota.

-New H-1B lottery process: Under the new rule, the first lottery selection pool includes all registrations (bachelor’s + US master’s degree cases) to meet the regular quota cap of 65,000; and then the second lottery selection is done only for US Master’s or higher degree applicants, that were not selected in the first lottery selection, to meet the 20,000 cap. It is estimated that this change will increase the chances of US Master’s quota applications by 16%, (approx. 5,340 additional petitions selected for US master’s cases.)

Pre-registration process to include information re the employer, beneficiary and attorney.

Electronic pre- registration dates: would start at least 14 calendar days before April 1, the first day of H-1B filing of the season; and would last for a minimum period of 14 calendar days.

USCIS would notify the public on their website at least 30 days in advance regarding the start date of H-1B electronic pre-registration period.

Labor Condition Application (“LCA”) is not required to be filed with the US Dept of Labor for pre-registration process. The KLCA only needs to be filed after the beneficiary is selected.

No fee charged for electronic pre-registration.

If selected, USCIS will give at least 60 days for employers to file the H-1B petition.