DHS Proposes H-1B Visa Rule Change Favoring Petitioners with U.S. Advanced Degrees

December 07, 2018

In a bid to increase the proportion of H-1B visa holders with graduate degrees from U.S. schools, the U.S. Citizenship and Immigration Services proposed to adjust how registrants are selected for H1-B visas without changing the overall number of visas issued.

USCIS says the proposed regulation would increase the number of selected petitioners with a master's degree or higher from U.S. schools by 16 percent.  With only 85,000 visas available, this is a zero-sum scenario—the selection of petitioners without such credentials would correspondingly decrease by 16 percent if USCIS' prediction holds true.

Under the proposed regulation:

  • USCIS would first consider petitioners with U.S. graduate degrees for one of 65,000 "regular cap" H-1B visas, which are available to all qualified petitioners.  If not selected, the agency will then consider the same petitioner for one of the 20,000 "advanced degree exception" visas.  This is a reversal of the current process, which considers petitions under the advanced degree exception first before moving to the regular cap.

  • Petitioners seeking to file H-1B petitions subject to the regular cap, including those eligible for the advanced degree exception, would first have to register with USCIS during a designated registration period.

Looking ahead: This marks the first of a number of promised proposed rulemakings by the Trump administration to the H-1B program.  Others likely include revising the definitions of “specialty occupation,” “employment,” and “employer-employee relationship;” imposing requirements “designed to ensure employers pay appropriate wages to H-1B visa holders;” and revoking employment authorization from spouses of H-1B workers.