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Jan 31, 2019

UPDATE: DHS Publishes Final Rule for H-1B Cap Lottery

Joshua H. Rolf

Though the government just re-opened a few days ago, the Department of Homeland Security (“DHS”) has been working through the shutdown to finalize its proposed rule that would fundamentally alter the H-1B Cap Lottery. Today, DHS announced it has published the Final Rule for public inspection, and that it is set to take partial effect on April 1, 2019. 

As discussed in our prior coverage on this topic, the Final Rule will reverse the order that H-1B Cap Petitions are selected and institute an electronic registration system that will select H-1B Petitions that may be filed. Once fully implemented, USCIS will run the regular cap lottery before the U.S. master’s lottery (20,000). While U.S. master’s employees have traditionally enjoyed a higher likelihood of selection thanks to their two bites at the lottery apple, reversing the selection order should give them an even greater advantage in this process, thereby rewarding graduates with advanced degrees from U.S. universities. Moreover, the Final Rule’s full implementation will present significant cost savings across the board – from avoiding the unnecessary preparation and submission of H-1B Petitions that are not selected, to lessening DHS’ staffing increases to handle H-1B Cap Petitions and return postage for unselected cases.

Importantly, DHS confirmed that only one half of these changes – the reversal of H-1B Cap selections – will take effect on April 1, 2019, and that the electronic registration system will be suspended for this year’s filing season while the Agency conducts user testing and confirms the online system is fully operational. As such, Fiscal Year 2020 H-1B Cap preparations will proceed in the same vein as years past, meaning all fully prepared Petitions must arrive at USCIS between April 1 – 5, 2019 in order to be eligible for the H-1B Cap Lottery. If selected and approved, the beneficiaries of these Petitions may commence work on October 1, 2019.

As our clients know, we have already commenced efforts for this year’s H-1B Cap season. If you plan on filing an H-1B Petition in the Fiscal Year 2020 Cap, we strongly suggest you also begin preparations to ensure a timely submission. Should you have any questions or concerns regarding this process, or would like our Firm’s assistance in assessing or preparing an H-1B Cap case, please do not hesitate to contact our office.

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