DHS has released its notice of proposed rule-making that will bring major changes to the H-1B lottery process. DHS expects the new rule to be implemented in time for the upcoming cap-season. 

DHS proposes to establish an electronic registration program for H-1B cap subject petitions. The proposed amendments would require petitioners seeking to file H-1B petitions subject to the regular cap and those eligible for the advanced degree exemption, to first electronically register with U.S. Citizenship and Immigration Services (“USCIS”) during a designated registration period. USCIS would select from among the registrations that are timely received, a sufficient number projected as needed to meet the applicable annual H-1B allocations.

DHS also proposes to modify the selection process. USCIS will first select registrations submitted on behalf of all beneficiaries, including those eligible for the advanced degree exemption. USCIS would then select from the remaining registrations a sufficient number of petitions that would be needed to reach the advanced degree exemption. This will effectively change the order in which USCIS selects petitions in the lottery. (Currently a lottery system is first conducted for the advanced degree exemption petitions. Any petitions not selected under the advanced degree exemption are counted against the regular cap).

USCIS believes that changing the order in which it counts these separate allocations will help increase the probability for H-1B visas to be awarded to those beneficiaries who possess a Master’s degree or higher from a U.S. institution of higher education.

Specifics of the Proposed H-1B Registration Program:

The electronic registration process would start before April 1st, in advance of the period during which H-1B petitions can be filed for a new fiscal year. A registrant therefore could wait until they have been notified of selection before submitting the LCA to DOL for approval and preparing the corresponding H-1B petition on behalf of the beneficiary named in the selected registration.
The registration process would be mandatory, and an H-1B cap-subject petition would not be considered properly filed unless it is based on a valid registration selection for that fiscal year. H-1B cap-subject petitions that are not properly filed would be rejected.

The registration period would last for a minimum period of fourteen calendar days. USCIS would give the public at least 30 days advance notice of the opening of the initial registration period for the upcoming fiscal year. USCIS will also separately announce the final registration date in any fiscal year on the USCIS website. If USCIS determines that it is necessary to re-open
the registration period, it would announce the start of the re-opened registration period on its website before the start of the re-opened registration period.

Petitioners would be asked to provide basic information regarding the petitioner and beneficiary when registering. This information may include, but is not limited to: (1) the employer’s name,
employer identification number (EIN), and employer’s mailing address; (2) the employer’s authorized representative’s name, job title, and contact information (telephone number and email
address); (3) the beneficiary’s full name, date of birth, country of birth, country of citizenship, gender, and passport number; (4) if the beneficiary has obtained a master’s or higher degree from
a U.S. institution of higher education; (5) the employer’s attorney or accredited representative, if applicable (a Form G-28 should be also submitted electronically if this is applicable); and (6) any
additional basic information requested by the registration system or USCIS.

The petitioner would also be required to attest, within the registration system, that the contents of each registration are true and accurate and that the petitioner intends to employ the beneficiary consistent with the registration. DHS recognizes that with the lowering of the burden and cost for participating in the H-1B cap selection process, there is a possibility that employers
will utilize the registration system in a way to maximize their likelihood of being able to hire the best job candidates. To address potential issues of “flooding the system” with non-meritorious
registrations, DHS is prohibiting petitioners from submitting more than one registration for the same beneficiary during the same fiscal year, and is requiring petitioners to make an attestation in the system indicating their intent to file an H-1B petition for the beneficiary in the position for which the registration is filed. This attestation is intended to ensure that each registration is
connected with a bona fide job offer and, to the extent selected, will result in the filing of an H-1B petition.

At the end of the initial registration period, if USCIS determines that it has received enough registrations in the initial registration period to reach the projected number of petitions to
meet the regular cap, USCIS would conduct a random selection of all of the registrations received during the initial registration period. Under such process, USCIS would randomly select a number of registrations in the regular cap that USCIS projects would be sufficient to meet the cap. The number needed to meet the cap would be determined by USCIS in advance of each fiscal year’s cap selection, and would be determined by projections taking into account historical approval, denial, revocation, rejection rates, and other relevant factors such as the percentage of registrants that ultimately decide not to file an H-1B petition. USCIS would hold in reserve registrations which are not selected.

After USCIS has completed selecting registrations for the H-1B regular cap, USCIS would determine whether there is a sufficient number of remaining eligible registrations to meet
the projected number of petitions to reach the H-1B advanced degree exemption numerical limitation. USCIS is proposing to count all registrations toward the H-1B regular cap projections first, even in years when a random selection process at the end of the initial registration period is unnecessary.

USCIS would include registrations for petitions that are eligible for the H-1B advanced degree exemption under the regular cap first until the projected number needed to meet the regular cap is reached. Once the regular cap projected number is reached, USCIS would then count those registrations for petitions eligible for the advanced degree exemption and not selected under the regular cap toward the projected number needed to reach the advanced degree exemption allocation.

Petitioners would have a period of at least 60 days to properly file a completed H-1B cap-subject petition for the named beneficiary. USCIS would notify all petitioners with selected registrations that the petitioner is eligible to file an H-1B cap-subject petition on behalf of the named beneficiary within the designated filing period.

DHS anticipates that there would be several filing periods for each fiscal year. Selected registrations may be provided a filing window between April 1 and May 31, while other selected registrations may be provided a filing window between May 1 and June 30. Separate filing windows would help USCIS manage the surge of cap-subject petitions received after it conducts the lottery. Separate filing windows would allow USCIS to more efficiently use its resources (e.g., personnel) to complete the intake process and allow for the most efficient processing and adjudication of cap-subject petitions. DHS believes that a 60-day filing window would allow a petitioner sufficient time to obtain an LCA, if they have not already, and prepare the full H-1B package for filing.