On Monday, the Office of Management and Budget (OMB) approved a USCIS proposal altering the H-1B Cap procedure, the new proposal is expected to be published for public comment in the near future. For information about the current H-1B cap procedure, please click here. To learn more about the H-1B visa and your eligibility, please click here. Although there is currently no public details about the new procedure, the new procedure is understood to include the following:
- Employers have to register for the lottery first. In order to register, employers will file a short online form that provides basic information about the company, the job offer, and the prospective foreign employee. A separate form will have to be filed for each individual foreign employee. The registration period will likely occur before the usual April 1 opening day of cap filing.
- USCIS will seek to change the order of the cap lotteries so that advance-degree lottery will run before the regular cap lottery. The purpose is to maximize the number of advanced degree graduates selected for the H-1B cap total cap of 85,000. USCIS has also discussed revising the way cap numbers are allocated, so that advanced degrees and high salaries receive priority.
- Full H-1B petitions and supporting evidence would only be filed for registrations that were selected in the lottery. If the case is selected, employers will be required to submit their cap petitions within a specific timeframe. If not selected, the application should not be submitted at all.
- USCIS may also create a waiting list so additional cases could be filed if the quota is not reached due to rejections, withdrawals, or failure to submit in time.
USCIS has stated that they are working to implement the cap registration in time for the fiscal year 2020 season, beginning in April 1, 2019. Given the undoubtedly short amount of time between finding out if the lottery has been won and submission deadline, employers should still prepare all applications and supplemental documents ahead of time. However, this new method will save USCIS the work and money of sending back applications that were not selected. Please note that the new selection method has not been implemented as of yet and the details of the new system have also not been released yet. Actual changes to the new lottery system may differ from above.
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Ian E. Scott, Esq. is the Founder of Scott Legal, P.C. He can be reached at 212-223-2964 or by email at firstname.lastname@example.org.
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