On December 3, U.S. Citizenship and Immigration Services (USCIS) announced published changes to the annual H-1B cap program. The H-1B program allows U.S. employers to temporarily employ foreign workers in specialty occupations that require a bachelor’s degree or higher.

Each year, the first date employers may file for a new H-1B petition is usually April 1. Congress mandated an annual cap on new H-1B petitions of 85,000. When USCIS receives more than enough petitions to reach the cap, a computer-generated random selection process (“H-1B lottery”) is used to select the 85,000 petitions. First, USCIS executes a lottery for petitions on behalf of candidates who hold a U.S. master’s degree or higher. Those petitions are selected for a 20,000 H-1B “set-aside” for graduate degrees. Any “master’s cap” cases that are not selected in this lottery, are re-entered into the general lottery for the remaining 65,000 petitions.

USCIS’ Proposed Changes:

  • Employers seeking to file H-1B petitions will be required to pre-register for one of the 85,000 petitions available.
  • USCIS would execute the “regular cap” first, then the “master’s cap.”

The proposed rule would prevent employers from having to prepare a full and detailed petition for a candidate until certain that a cap-subject petition number is available. This should reduce costs for employers and create a more efficient process for petition review. Additionally, USCIS expects that reversing the cap lottery will increase the chances that candidates with a master’s degree or higher will be selected for one of the cap lotteries. The intended result is that H-1B status would be awarded to the most skilled and highest paid candidates.

The proposed rule would relieve the burden on USCIS to intake, and handle hundreds of thousands of petitions and reduce the wait time for decisions on the petitions selected in the cap. Notably, USCIS usually issues decisions on all cap petitions selected in the lottery by October 1 of each year. As of December 3, employers are still waiting on H-1B decisions for petitions filed in April of this year.

Public comments on the proposed rule may be submitted from date of publication (today) until January 2, 2019. Formal Comment may be submitted here.