H-1B regulation clears last hurdle before final rule

IMPACT – HIGH

The proposed U.S. Citizenship and Immigration Services (USCIS) regulation that will revamp the selection process for H-1B cap petitions has cleared the Office of Management and Budget, the last stage before the rule becomes final.

Key points:

• The final rule is expected to be published in the Federal Register in the coming days and will include a specified effective date.
• The proposed rule would require H-1B petitioners to file an online pre-registration for each individual they seek to sponsor for an H-1B visa subject to the annual cap, and would reverse the order in which the agency selects applications to give advanced-degree holders better odds of being selected.
• The final regulation may contain changes that differ from the proposed version, and the implementation timeframe remains unclear. BAL’s FAQ on the proposed regulation may be viewed here.

BAL Analysis: USCIS has pursued an aggressive timeline to finalize the rule before the upcoming cap season. Nevertheless, while it is likely that the agency will be able to implement the provision that would reverse the order of the lottery, it remains unclear whether the agency will apply the online pre-registration requirement to the cap filing season that opens on April 1. Public statements by agency officials suggest that USCIS may delay implementation of the registration system beyond this year’s cap season. Companies should continue to prepare for the upcoming H-1B cap season as they normally would. BAL is closely following the rule and will report details when the final regulation is published.

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

Copyright © 2019 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.