Final H-1B lottery regulation issued

The Department of Homeland Security has posted the final H-1B lottery regulation that is expected to be published in the Federal Register on Thursday. The regulation reverses the order in which the agency selects H-1B cap-subject petitions to increase the number of advanced-degree holders selected and requires H-1B petitioners to file an online registration for each individual they seek to sponsor for an H-1B visa subject to the annual cap.

Key time frames:

• Online registration. The online registration will not be introduced for fiscal year 2020 H-1B cap cases filed this coming April.
• Reversed selection order. The reversal of the selection order of regular and advanced-degree holders will be introduced for cap season in April. USCIS will include all U.S. advanced-degree holders in the general lottery, which will be conducted first. Then, if needed, USCIS will conduct a second lottery to exempt 20,000 advanced-degree holders from U.S. universities from the annual statutory limit.

BAL Analysis: DHS has decided not to implement the mandatory online registration system immediately in response to public comments and concerns that the system would not be fully tested and operational for the upcoming cap season. Employers should plan for the cap season as they normally would, as they will not be required to submit online registration forms this April. BAL will provide additional analysis in the coming days following publication of the final regulation.    

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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