Clarity and Strength in Immigration Law

Staying Ahead of the Curve: Proposed Changes to the H-1B Cap Program

By Samantha Davis, Richmond VA Immigration Lawyer


On December 3rd, 2018, USCIS announced a proposed rule that could significantly change the H-1B cap program. The proposed rule includes two major changes to the current H-1B cap lottery program.

  1. Creation of a Registration Process
    The proposed rule would create an initial registration process for petitioners seeking to file H-1B cap petitions. Instead of submitting completed petitions for each beneficiary and then waiting to be chosen in the lottery, an employer would be required to register each beneficiary online. The proposed rule states that the registration period would begin at least fourteen calendar days before the first day of filing. However, there is no information on how quickly petitions would be chosen. The petitioner would receive a notification for each petition that was accepted (or not selected) and would then only need to submit complete petitions for those beneficiaries who were selected in the lottery. DHS has proposed that petitioners would have a period of at least 60 days to properly file a completed H-1B cap petition. DHS is currently not proposing a fee to complete the registration process.
  2. Changing the Selection Order: Prioritizing Advanced Degrees (US Master’s Cap)
    Under the current law, there is a limit of 65,000 new H-1B visas available each year (this is commonly called the H-1B cap), and a limit of an additional 20,000 H-1Bs available for beneficiaries with a US master’s degree or higher. Right now, if USCIS receives more petitions than there are H-1B available (85,000 total), they conduct an H-1B lottery of all the petitions received the first five business days of filing.  Right now, USCIS conducts the US master’s cap lottery first. Any US master’s degree petitions not selected in that lottery are then put in the lottery for the “regular” H-1B cap.  Under the proposed change, USCIS would include registrations for petitions that are eligible for the H-1B advanced degree exemption (US master’s cap) under the regular cap first until the projected number is reached. USCIS would then count those registrations for petitions eligible for the advanced degree exemption. This change will likely increase the number of beneficiaries with a master’s degree or higher to be selected for further processing. DHS estimates that 29% of the 65,000 visas available in the regular cap will go to beneficiaries with an advanced degree.

What does this mean for you? 

  1. Timeline: Right now there is a 30 day comment period (see below), through Jan 2, 2019. Then USCIS would have to review the comments and address the concerns raised in the comment, and incorporate those into the final rule (or explain in the commentary why they did not). The Office of Management and Budget (OMB) must review the final version of the rule, and then USCIS would publish an effective date for the rule. Then USCIS must come up with a (working!) system for the online registration. We think it is highly doubtful that the electornic registration system would be up and running before the 2019 H-1B cap season, though it is possible. 
  2. Comments! 
    We are urging clients to submit comments on the proposed rule. We think it is extremely important for USCIS to hear the concerns about these proposed changes from those who actually use the current system.  Written comments must be received on or before January 2, 2019. You may submit comments by one of the following methods:
     Online at the Federal eRulemaking Portal: Go to http://www.regulations.gov and search for “DHS Docket No. USCIS – 2008-0014”. The first result will have a “Comment Now” option on the right, click on that to submit your comment. 
     Mail: Submit written comments directly addressed to Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW, Washington DC 20529 with a reference to DHS Docket No. USCIS – 2008-0014.
  3. Next steps: H-1B season (January – March each year) is always a busy season at our office, and we look forward to helping our current and new clients prepare H-1B cap petitions. At this time we plan to proceed as normal. Even if there is a registration system, we will still have to analyze cases for eligibility, documentation, etc. As outlined above, we do think it is unlikely that the registration system would be in place for the FY 2020 (April 2019) filings. Therefore we encourage clients to send us their lists of planned H-1B filings after the holidays, so that we can begin work and be ready for whatever comes our way!

Rest assured that Sumner Immigration is actively keeping up with the proposed changes and will keep clients informed as we can gain additional information. Unfortunately, at this time we do not know whether this proposal will take effect and if it does, when it will. Whether these changes go into effect or not, now is the time to start planning for the H-1B cap lottery. If you have questions about planning or eligibility, please contact us for a consultation.

Do you need assistance with a family-based or employment-based immigration matter? Please contact our office today to see how we may be able to assist you! We are immigration lawyers located in Richmond, VA but we serve clients throughout the US and around the world. Please call us at 804-396-3412 or email us at info@sumnerimmigration.com. We look forward to hearing from you!

Sumner Immigration Law is LGBTQ-friendly.