DHS Issues New Rules Prioritizing Certain H-1B Applicants, Establishing New Electronic Registration System

February 01, 2019

The Department of Homeland Security posted a final rule that prioritizes applicants with graduate degrees from U.S. schools in the H-1B selection process and which will require that they register electronically with U.S. Citizenship and Immigration Services (USCIS) prior to submitting their petitions—a step that will not be implemented until after the 2020 H-1B cap season beginning April 1 of this year.

Petitioners with U.S. graduate degrees will first enter a lottery that allocates 65,000 "regular cap" H-1B visas.  Those who are not selected will then be entered into a second lottery for 20,000 "advanced degree exception" visas.  This is a reversal of the current process, which grants petitions under the advanced degree exception first before moving to the regular cap.

USCIS projects the new selection process will increase the number of selected petitioners with a master's degree or higher from a U.S. school by 16 percent.  The rule does not lower the number of visas available.

The move to postpone implementation of the electronic registration system is a welcome relief to the business community, representatives of which cautioned that the April deadline was ambitious.

Looking ahead: DHS is likely to publish further, more onerous proposed rulemakings, 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.