Jan 30 2019

H-1B Cap Update: DHS to Postpone Online Cap Registration But Will Implement Lottery Change This Year

United States

At a glance

  • The long-awaited final H-1B cap registration rule has been issued and is expected to be published in the Federal Register on January 31.
  • DHS will establish an online cap registration system as anticipated, but will postpone implementation until the FY 2021 H-1B cap season, which begins in early 2020.
  • DHS will reverse the order of the regular and advanced-degree cap lotteries for the upcoming cap season as proposed.
  • Employers should continue to prepare as usual for the FY 2020 H-1B cap filing season, which begins April 1.

The situation

The Department of Homeland Security has decided to postpone the implementation of an online H-1B cap registration system until the FY 2021 filing period, according to an advance copy of the highly anticipated regulation. However, the agency will switch the order of the regular and advanced-degree cap selection lotteries for the FY 2020 filing season, which begins on April 1.

DHS has deferred cap registration until next year so the agency can continue to develop and test its online registration system. Once the system is implemented, employers would file full cap petitions only for registrations selected in the lottery. If a registration were selected, the employer would have at least 90 days to file its cap petition. DHS is expected to provide further details on the operation of the system and key filing periods early next year.

For the upcoming FY 2020 filing season, the agency will first run the regular H-1B cap lottery to select enough petitions to meet the 65,000 H-1B quota. It will then run a lottery to select enough qualifying petitions to meet the cap exemption of 20,000 for holders of U.S. advanced degrees.  DHS estimates that the change will yield a higher proportion of advanced-degree workers, one of the key goals of the Trump Administration’s Buy American, Hire American executive order.

What this means

Your organization should continue to work with your Fragomen team to prepare for the upcoming H-1B cap season as usual.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.