Department Of Homeland Security Finalizes Merit-Based Rule For H-1B Program

On January 31, 2018, 2 months after proposing the merit-based rule for the H-1b program, the DHS (and the U.S. Citizenship and Immigration Services) published the final rule. This rule changes how H-1b petitions are selected and puts in place an electronic registration system. The DHS believes these changes are in line with the Buy American and Hire American Executive Order put in place by the Trump administration.

This new rule is the finalized version of the changes proposed by the DHS in December 2018. The proposal outlined (1) changes to be made to the way in which petitions are selected – the proposed rule sought to reverse the order in which the random selection transpired, and (2) the addition of an electronic registration process, which is to take place before the start of the H-1b cap season each year.

As the final rule finalized the proposed rule, these changes are expected to go into effect on April 1, 2019. The registration system will not be implemented this fiscal year as the DHS wishes to further test the system. The registration system is expected to be used for the FY2021 cap filing season (which is next year). As such, both employers and prospective beneficiaries need not worry about the registration system this filing season which begins on April 1, 2019.

Changes Made:

1 – The final rule requires the U.S. Citizenship and Immigration Services (USCIS) to reverse how H-1b petitions are selected. For past years, the USCIS selected petitions for the advanced degree exception cap before the regular H-1b cap.  As such, the USCIS first randomly selects petitions towards the advanced degree cap in which 20,000 petitions are selected whereby the beneficiaries have advanced degrees from recognized U.S. institutions. After that, beneficiaries with advanced degrees who are not selected are added to the regular H-1b cap selection process in which 65,000 petitions were selected.

With the reversal of the selection process, USCIS will first select all petitions including those for persons with advanced U.S. degrees towards the regular H-1b cap. After which, the remaining petitions for foreign nationals with advanced U.S. degrees are selected towards the advanced degree exception. According to the USCIS, the reversal of the selection process will increase the number of beneficiaries with advanced U.S. degrees selected by as much as 16 percent. This will be in line with the current administration’s directive that the DHS puts reforms in place to ensure that H-1B visas are given to the most-skilled or highest-paid petition foreign nationals.

2 – While the electronic registration system will not be implemented for the current fiscal year’s filing season, it is expected to be implemented in subsequent filing seasons. The USCIS is expected to undertake an outreach, which will ensure employers know how to properly access and use the system. With this registration system, all employers are expected to register electronically within a period designated by the USCIS. The USCIS will give advanced notice of 30 days or more before the registration period starts. Once the registration period begins, it will be opened for at least 2 calendar weeks.

According to the published final rule, while there is no fee required to register electronically, the DHS may consider charging a fee in the future. Information employers will need to provide for the electronic registration include employer’s name, beneficiary’s name and qualifications, attorney of record. However, a detailed job description is not needed at the time of electronic registration.

According to the USCIS, this new electronic registration system will cut down the cost for employers who wish to file H-1b petitions and will make the H-1b cap petition process more cost-effective and efficient for both the USCIS and petitioners.

Sources

1. U.S. Citizenship and Immigration Services (January 31, 2019). DHS Announces Final Rule for a More Effective and Efficient H-1B Visa Program. 
2. Federal Register. (January 31, 2019). Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens.