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H-1B Cap Filings-Electronic Registration; Reversal of Cap Count

January 30, 2019 Leave a comment

The U.S. Citizenship and Immigration Services (USCIS) recently proposed a few changes to the H-1B visa program.  Most notably, introduction of electronic registration requirement for employers in order to file the H-1B cap petitions and the reversal of how cap numbers are counted/allocated.  The proposed regulation which went through a comments period prior to being sent to OMB for review (Office of Management and Budget) has been approved by OMB yesterday.  The USCIS has just released the final regulation today. 

Summary of Changes:

Mandatory Electronic Registration Requirement (but fortunately not for this year):

  • USCIS is introducing the electronic registration requirement for employers in order to file H-1B cap-subject petitions on behalf of foreign workers.  The good news is that USCISis suspending the electronic registration requirement for the upcoming FY 2020 (i.e. April 1, 2019 filings) H-1B cap season so as to allow itself to undertake user testing of the electronic registration system and to ensure the system and process are fully functional forFY 2021 (April 1, 2020) H-1B season.  What this means for employers is for this year, the process of filing H-1B cap cases remains the same with no electronic registration requirement, etc. 
  • Once the electronic registration takes effect sometime next year, employers who seek to file H-1B cap petitions will need to electronically register as a first step during a designated electronic registration period, unless the registration requirement is temporarily suspended.
  • USCIS will announce the start date of the initial registration period on its website for each fiscal year at least 30 days in advance of the opening of the registration period. The registration period will last a minimum of 14 calendar days and will start at least 14 calendar days before the earliest date on which H-1B cap-subject petitions may be filed for a particular fiscal year.
  • An H-1B employer (or agent/attorney) must electronically submit a separate registration to file a petition for each foreign worker it seeks to register, and each beneficiary must be named.  Cannot register a petition without the Beneficiary’s full legal name. 
  • An employer cannot submit more than one registration for each foreign worker for the given fiscal year. In other words, no duplicate filings and if an employer is found to have been involved in duplicate registrations, all registrations pertaining to that employer for that foreign worker will be invalidated.
  • If/when a visa lottery takes place, USCIS will notify via a written notice to the employers whose petitions have been selected to file an H-1B petitions for the named foreign workers in the notice within a given filing period indicated on the notice.  Such employers must submit the petition and support documents, which is at the minimum 90 days per the final regulation.

Reversal of Cap Count Coming this year itself:

Current Process:

The current process of counting cap-subject cases in the instance where H-1B filings hit the cap in the first five business days is that-

  • First Step:  The Advanced degree (US Master’s cap) exemption foreign workers (US Master’s of higher) are selected in 20,000 cap; and
  • Second Step: Once the Master’s cap cases have been counted, the regular H-1B cap (65,000) cases are selected including any US advanced degree-holder petitions that did not get selected in the US Master’s cap.

Upcoming Change in Process for April 1, 2019:

The proposed change which became part of the final rule starting the upcoming FY 2020 cap season (starting April 1, 2019) will essentially reverse the selection order: 

  • First Step: It will count all foreign workers towards the number projected as needed to reach the regular H-1B cap first.
  • Second Step: Once a sufficient number of applicants have been selected for the regular H-1B cap, USCIS would then select foreign workers towards the 20,000 US Master’s cap. 

The USCIS predicts that changing the order in which they cases are counted will likely increase (up to 16%) the number of beneficiaries with a U.S. master’s or higher degree.

H-1B Cap – Quota Numbers Update as of April 7, 2011

April 8, 2011 Leave a comment

USCIS has confirmed that it has received the following numbers for each category as of April 7, 2011:

H-1B regular cap: 5,900 (out of a possible 65,000)

H-1B Masters cap: 4,500 (out of 20,000)

For more updates on H-1B quota, please follow the H-1B Quota update section on the right hand side of this website.

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