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DHS's Changes to the H-1B Visa Lottery Process

On January 31, 2019, DHS published a final rule which makes two significant changes to the H-1B visa lottery process. The rule (1) adds an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions, and (2) it reverses the order by which USCIS will select petitions under the H-1B cap and the advanced degree exemptions.

The final rule will become effective April 1, 2019, though DHS will suspend the electronic registration requirement for this year's H-1B cap.

As the electronic registration requirement is suspended for this year's H-1B cap, this means that H-1B cap-subject petitions filed as part of the FY2020 H-1B cap will need to be filed using the same process as in prior years, with petitioners submitting a complete H-1B petition to USCIS.

The second major change, the reversal of the order by which USCIS will select petitions under the H-1B cap and the advanced degree exemption, will take place this year, during the FY2020 H-1B cap.

This change will result in USCIS counting all applicants towards the number projected as needed to reach the H-1B regular cap first. Once a sufficient number of applicants have been selected for the H-1B regular cap, USCIS would then select applicants towards the advanced degree exemption.

USCIS anticipates that this change will result in an increase of up to 16% (or 5,340 workers) in the number of selected petitions for H-1B beneficiaries with a master's degree or higher from a U.S. institution of higher education.

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