New H1-B Visa Regulations

Hello, this is Anna, a part-time employee at IMS.


On January 30th, 2019, A news release posted on the U.S. Citizenship and Immigration Services (USCIS) homepage, provided details of a Department of Homeland Security (DHS) (日本語:国土安全保障省) official announcement, which can be found in its full length here.

Generally speaking, The final rule reverses the order by which USCIS selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, and also introduces an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. The rule will be published in the Federal Register on Jan. 31, and will go into effect on April 1 (although the electronic registration requirement will be suspended for the FY 2020 cap season).

The H1-B visa process is quite complicated, but the basics are as such: The U.S. government (Congress) sets a limit to the amount of H1-B applicants it accepts per year, and caps the amount of petitions it shall receive at 65,000 (who are “cap-subject”). However, there are 20,000 petitions filed on behalf of beneficiaries with a U.S. Master’s degree or higher are exempt from the numerical cap (these petitioners are “cap-exempt”). Prior to the new rule, the standard process was to choose the 20,000 applicants first, and whoever was not chosen was added back to the lottery for the remaining 65,000.

As mentioned above, this new rule reverses that process. Starting from April 1st (which is when petitions can be filed for the year), USCIS will first select H-1B petitions from the entire applicant pool, including those that could qualify for the degree exemption; then, it will select the applicants who may be “cap exempt” (this number is projected to stay the same, so around 20,000). 

The news release claims that changing the order in which USCIS counts these allocations will increase the number of individuals who have a higher degree to be selected. They even specifically provide an estimate of 16% (or 5,340 workers). 

The reason for these changes comes from an Executive Order issued by Donald Trump on April 18, 2017, which instructed DHS to revise the immigration system to protect U.S. workers. The order mentions the H-1B program specifically, instructing agencies to implement reforms to “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”