DHS Contemplates Pre-Registration Rule for H-1B Cap-Subject Petitions

On October 17, 2018, the U.S. Department of Homeland Security released its Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions and Regulatory Plan.  In the plan, DHS provides a list of proposed regulation that is part of its current agenda.

DHS placed on its agenda a regulation that would require registration of employers seeking to file H-1B Petitions that are subject to the fiscal cap (i.e., both the regular cap and master’s cap).  The stated goal is to streamline intake and selection due to the high volume of petitions received by USCIS each year. According to the new rule, employers would register and identify the potential beneficiaries, with USCIS conducting the lottery based only on the information provided. In theory, it would prevent employers from having to submit fully prepared H1B petitions to USCIS until actually selected in the lottery.

The text of the rule was officially released on November 30, 2018, despite an originally stated October 2018 time frame for its release. It will be published in the Federal Register and available for public comment. DHS has indicated that it would like the rule to be in place by October 1, 2019 (FY 2020).

In addition to the registration requirement, the proposed rule would also reverse the order of the cap-subject “lottery” drawings so that the regular cap lottery occurs before the master’s cap.  This would theoretically result in more master’s cap eligible petitions being selected in the regular cap lottery, increasing the total number of potential H-1B beneficiaries with at least a Master’s Degree.

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