Final H-1B Cap Registration Rule Moves Closer to Completion

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At a glance

• The final version of the H-1B cap registration rule is now under review at the Office of Management and Budget, the next step in the regulatory process.
• USCIS is expected to issue the rule before the April 1 start date of the FY 2020 cap filing season. The contents of the final rule remain confidential for now, but USCIS has suggested it could defer its planned online registration requirement to a future year.
• Employers should continue to prepare as usual for the coming H-1B cap filing season.

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The situation

U.S. Citizenship and Immigration Services (USCIS) has sent a final version of its H-1B cap registration rule to the Office of Management and Budget (OMB), moving the highly anticipated regulation closer to completion.

As proposed, the regulation would require employers to register online prior to submission of an H-1B cap filing. It would also switch the order of the regular and advanced-degree cap lotteries to maximize the number of U.S. advanced-degree holders selected for H-1B employment. Employers would only file a full H-1B cap petition for registrations that were selected in the lottery.

Impact on FY 2020 H-1B cap filings

USCIS is working to finalize the regulation in time for the FY 2020 cap season, which is set to begin on April 1, 2019.  

It is not yet known whether the agency will implement online registration for the FY 2020 filing period.  USCIS has indicated that it could defer the online registration component to a future year, and instead only make changes to the order of the cap lotteries this year.

The contents of the final rule will remain confidential until released for publication in the Federal Register. OMB has up to 90 days to review the regulation, but could complete its review in less time. Last week, President Trump tweeted that changes would be “soon coming” to the H-1B program.

What employers should do now

Your organization should continue to work with your Fragomen team to prepare for the upcoming H-1B cap season as usual. If the online registration system is implemented in time for the FY 2020 cap season, advance preparation will be necessary to assess each case’s eligibility before registrations are submitted. If online registration is deferred, employers must be prepared to submit a full H-1B cap petition and supporting evidence for each beneficiary as usual.

Fragomen is closely monitoring the status of the rule and will continue to issue updates as the federal review process progresses.

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