DHS Announces Final Rule for a More Effective and Efficient H-1B Visa ProgramFinal Rule Effective Beginning April 1, 2019
WASHINGTON—The Department of Homeland Security (DHS) posted today for public inspection, a final rule amending regulations governing H-1B cap-subject petitions, including those that may be eligible for the advanced degree exemption. The final rule reverses the order by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, and it 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, though the electronic registration requirement will be suspended for the fiscal year (FY) 2020 cap season.
“These simple and smart changes are a positive benefit for employers, the foreign workers they seek to employ, and the agency’s adjudicators, helping the H-1B visa program work better,” said USCIS Director L. Francis Cissna. “The new registration system, once implemented, will lower overall costs for employers and increase government efficiency. We are also furthering President Trump’s goal of improving our immigration system by making a simple adjustment to the H-1B cap selection process. As a result, U.S. employers seeking to employ foreign workers with a U.S. master’s or higher degree will have a greater chance of selection in the H-1B lottery in years of excess demand for new H-1B visas.”
Effective April 1, USCIS will first select H-1B petitions (or registrations, once the registration requirement is implemented) submitted on behalf of all beneficiaries, including those that may be eligible for the advanced degree exemption. USCIS will then select from the remaining eligible petitions, a number projected to reach the advanced degree exemption. Changing the order in which USCIS counts these allocations will likely increase the number of petitions for beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected under the H-1B numerical allocations. Specifically, the change will result in an estimated 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.
USCIS will begin accepting H-1B cap petitions for FY 2020 on April 1, 2019. The reverse selection order will apply to petitions filed for the FY 2020 H-1B cap season. Petitioners may file an H-1B petition no more than six months before the employment start date requested for the beneficiary. USCIS will provide H-1B cap filing instruction on uscis.gov in advance of the filing season.
Importantly, after considering public feedback, USCIS will be suspending the electronic registration requirement for the FY 2020 cap season to complete user testing and ensure the system and process are fully functional. Once implemented, the electronic registration requirement will require petitioners seeking to file H-1B cap petitions, including those that may be eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period. Only those whose registrations are selected will be eligible to file an H-1B cap-subject petition. USCIS expects that the electronic registration requirement, once implemented, will reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process for USCIS and petitioners.
Additionally, USCIS will publish a notice in the Federal Register to announce the initial implementation of the H-1B registration process in advance of the cap season in which it will implement the requirement. Prior to implementation, USCIS will conduct outreach to ensure petitioners understand how to access and use the system. Once implemented, USCIS will announce the designated electronic registration period at least 30 days in advance for each fiscal year it is required.
On April 18, 2017, President Trump issued the Buy American and Hire American Executive Order, instructing DHS to “propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of U.S. workers in the administration of our immigration system.” The executive order specifically mentioned the H-1B program and directed DHS and other agencies to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”
Update: FY2025 H-1B Cap Registration Results
The U.S. Citizenship and Immigration Services (USCIS) recently announced the Fiscal Year 2025 H-1B cap lottery results, revealing a significant drop in the number of registrations—470,342, down 38.6% from 758,994 in FY 2024. This reduction is attributed to new USCIS policies aimed at enhancing program integrity, including curbing the unusually high rate of multiple registrations per individual last year.
In the FY2025 H-1B Cap lottery, USCIS selected 114,017 beneficiaries, resulting in 120,603 selected registrations. Given these numbers, the likelihood of a second lottery for the FY 2025 H-1B cap appears slim.
USCIS to Conduct Second Random Selection for FY 2024 H-1B Cap Cases
On July 27, 2023, the U.S. Citizenship and Immigration Services (USCIS) made a significant announcement, stating that it will conduct a second random selection from the pool of previously submitted FY 2024 H-1B cap registrations. This decision was necessitated by the agency’s determination that additional selections were required to meet the FY 2024 numerical allocations. USCIS plans to select additional registrations from the previously submitted electronic registrations using its random selection process, and will provide updates once this second selection process is completed.
The announcement of a second lottery selection seems to be related to wide-spread concerns about the potential for multiple employers submitting H-1B registrations on behalf of a single beneficiary. The record-breaking 780,000 H-1B lottery registrations this year, with a strikingly low selection rate of approximately 14.6%, was largely due to duplicate applications. The USCIS reported that more than half the registrations, nearly 409,000, were for potential beneficiaries whose names were submitted multiple times. The increase in registrations this year from individuals whose names were submitted only once was much smaller — 350,000, up from 309,000 last year. While not explicitly illegal, this practice has raised substantial concerns within the USCIS that certain entities may have collaborated to submit multiple registrations for the same beneficiary, in an attempt to manipulate the system and unjustly inflate the chances of a beneficiary’s selection in the lottery. Investigations into these concerns had been initiated by USCIS, resulting in the denial and revocation of certain petitions, as well as its instituting referrals for potential criminal prosecution. The USCIS’s announcements and the media’s reports on this matter appear to have led to the intended “chilling effect” on the number of actual H-1B petitions filed from those that were selected in the initial lottery.
The implementation of a second lottery selection, while offering a glimmer of hope for many U.S. educated professionals, starkly illuminates the inherent flaws of the current H-1B cap registration process, specifically the recently introduced digital lottery process. The lack of any real safeguards within this system led to its foreseeable exploitation. Further, the exceedingly low annual H-1B quota allocation continues to hamper U.S. business and education. Ultimately, to secure an intelligent and truly merit-based immigration system, and to ensure that the U.S. continues to attract top talent globally, the registration process must be redressed, and the annual H-1B cap and the 7% cap on per country green card issuance must be significantly increased.
Canada’s Tech Talent Strategy: A Model for Reform in the U.S. Immigration System
In an effort to augment its technological sector, the Canadian government, under the banner of its Tech Talent Strategy, is launching an exclusive open work permit stream for U.S. H-1B specialty occupation visa holders. This initiative, slated to commence on July 16, 2023, promises to offer up to 10,000 of these highly-skilled professionals a flexible work permit to work in Canada, for up to three years. Spouses and dependents of the principal applicants would not be counted towards the 10,000 number, and would also eligible to apply for temporary Canadian resident visas, including work or study permits, as required.
The Tech Talent Strategy, while a significant step forward, still lacks key details and presents certain restrictions. The program is currently set to run for a year or until it hits the ceiling of only 10,000 applications. A noteworthy omission in the Canadian strategy is the non-inclusion of F-1 OPT STEM workers in this initiative. This demographic, a significant number of whom have earned their STEM Master’s degrees from U.S. institutions – could have been a substantial asset to the Canadian tech sector. The integration of these innovative, committed professionals could have presented Canada with the opportunity not only to tap into a significant reservoir of young and motivated individuals but also to potentially secure their lifelong loyalty, as many have been consistently overlooked for H-1B visas due to the fraud-riddled quagmire that the Fiscal Year H-1B Cap lottery process has devolved into, thanks to its ill-conceived “digital” transition under the outgoing Trump Administration.
The unveiling of Canada’s Tech Talent Strategy highlights the shortcomings of the U.S.’s immigration policy, especially regarding the attraction and retention of highly skilled tech professionals. Our own policy continues to be entangled in a web of bureaucratic complexities as well as archaic measures and quotas, leading to insufficient H-1B quota numbers and prolonged green card waiting periods, which disproportionately impact Indian nationals.
Our own purported “merit-based” immigration policy, amounting to a mere 15% of all U.S. green cards issued annually, is woefully inadequate, allocating a meager 2,000 or 2,500 green cards to Indian professionals each year, including their spouses and children under 21. Meanwhile, a staggering backlog of approximately 900,000 other Indian applicants remains in agonizing limbo, condemned to endure a wait that is projected to extend for decades.
These extensive processing times, particularly for the very individuals who make monumental contributions to the U.S. Tech Sector’s triumph, not only repel talent but also serve as an unequivocal testament to a system in dire need of comprehensive reform. The stark disparity between our policy and those implemented by other nations underscores the pressing urgency for immigration reform in the U.S.
Update on USCIS Final Rule on Changes to the H-1B Lottery Process
USCIS’s final rule on changes to the H-1B lottery process adds a requirement that petitioners seeking to file H-1B petitions subject to the regular cap, including those eligible for the advanced degree exemption, first electronically register with USCIS during a designated period. However, USCIS is suspending this proposed registration requirement for the FY2020 cap season in order to complete testing of the new registration system.
The rule also reverses the order by which USCIS selects H-1B registrations (or petitions, for FY2020 or any other year in which the registration requirement is suspended) by first selecting registrations submitted on behalf of all beneficiaries, including those eligible for the advanced degree exemption. USCIS will then select from the remaining registrations a sufficient number projected as needed to reach the advanced degree exemption. This change to the order of the selection process will be implemented for the FY2020 cap season. The rule will be published in the Federal Register on 1/31/19 and will be effective 60 days from the date of publication.
USCIS’s announcement follows:
USCIS Turns Away Highly Valuable Revenue Stream by Temporarily Suspending Premium Processing for FY2019 H-1B Cap Petitions
“The U.S. Citizenship and Immigration Services’ (USCIS) most recent cost and schedule baseline, approved in April 2015, indicates that its Transformation Program will cost up to $3.1 billion and be fully deployed no later than March 2019. This is an increase of approximately $1 billion with a delay of more than 4 years from its initial July 2011 acquisition program baseline. In addition, the program is currently working to develop a new cost and schedule baseline to reflect further delays. Due to the program’s recurring schedule delays, USCIS will continue to incur costs for maintaining its existing systems while the program awaits full implementation. Moreover, USCIS’s ability to achieve program goals, including enhanced national security, better customer service, and operational efficiency improvements, will be delayed.…Given the history of development for the Transformation Program and the subsequent commitment of additional resources for a new system, it is more important than ever that USCIS consistently follow key practices in its system development efforts. For example, the program has already reported realizing risks associated with deploying software that has not been fully tested, such as system bugs, defects, and unplanned network outages. If the agency does not address the issues GAO has identified in prior work, then it will continue to experience significant risk for increased costs, further schedule delays, and performance shortfalls.”
USCIS Resumed Premium Processing H-1B Cap Petitions Subject to the Fiscal Year year (FY) 2018 Cap on September 18, 2017
VIA USCIS.GOV
WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) resumed premium processing today for all H-1B visa petitions subject to the Fiscal Year year (FY) 2018 cap. The FY 2018 cap has been set at 65,000 visas. Premium processing has also resumed for the annual 20,000 additional petitions that are set aside to hire workers with a U.S. master’s degree or higher educational degree.
H-1B visas provide skilled workers for a wide range of specialty occupations, including information technology, academic research, and accounting. When a petitioner requests the agency’s premium processing service, USCIS guarantees a 15-day processing time. If the 15- calendar day processing time is not met, the agency will refund the petitioner’s premium processing service fee and continue with expedited processing of the application. This service is only available for pending petitions, not new submissions, since USCIS received enough petitions in April to meet the FY 2018 cap.
In addition to today’s resumption of premium processing for H-1B visa petitions subject to the FY 2018 cap, USCIS previously resumed premium processing H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program, as well as interested government agency waivers and for certain H-1B petitions that are not subject to the cap. Premium processing remains temporarily suspended for all other H-1B petitions, such as extensions of stay.
USCIS plans to resume premium processing for all other remaining H‑1B petitions not subject to the FY 2018 cap, as agency workloads permit. However, remaining petitioners may submit a request to expedite their application if they meet the specific agency criteria. USCIS reviews all expedite requests on a case-by-case basis, and requests are granted at the discretion of the office leadership.
USCIS will release future announcements when we begin accepting premium processing for other H-1B petitions, not subject to the FY 2018 cap.
USCIS Completes Data Entry for FY2018 H-1B Cap Subject Petitions
USCIS announced that it has completed data entry of all FY2018 H-1B cap-subject petitions selected in the computer-generated random process. USCIS will now begin returning all H-1B cap-subject petitions that were not selected.
Update on H-1B Cap Subject Petitions for FY2018: 199,000 Petitions Filed
- On April 7, 2017, USCIS announced that it had received enough H-1B petitions to reach the statutory cap of 65,000 H-1B visas and 20,000 advanced degree visas for FY2018.
- On April 17, 2017, USCIS announced that it had received 199,000 H-1B petitions during the filing period, which began April 3. This represents a 15.7 percent decrease from the 236,000 petitions that USCIS received during last year’s filing period.
It’s That Time of Year: the H-1B Fiscal Year Quota and the H-1B Haters
The Fiscal Year Quota for H-1B visas is, as usual, just opened on April 1 which elicits a bit more public interest about the H-1B program in particular and Business Immigration in general. Unfortunately, Business Immigration is the orphaned step-brother of Family Based Immigration and the H-1B is not as publicly controversial a subject as most other immigration issues in the news though, so this public interest is invariably fleeting.
This is also about the time of year when anti-H-1B propagandists crawl out into the sunlight like xenophobic groundhogs to regurgitate their timeworn arguments against the visa program. They allege that the H-1B program as a whole fails to deliver the “best and the brightest” to America, that Americans are being displaced by foreigners earning “low wages“, that there are sufficient numbers of qualified American workers to fill the proffered jobs. Some of the slicker ones even feign an interest in the welfare of H-1B workers by claiming widespread abuse by H-1B employers (despite the fact that H-1B workers may transfer to another employer in 8 days whenever they’d like, and that they are protected by the DOL W&H and other agencies to a degree that would make a U.S. Citizen green with envy).
Major Policy Shift: USCIS Rescinds Guidance on H-1B Computer Related Positions without Notice or Due Process on the Eve of the H-1B Fiscal Year Cap with 200,000+ I-129 applications enroute to USCIS for delivery by April 7, 2017 – the Eligibility of an H-1B Petition for IT Workers will now Increasingly be based on its LCA Wage Level (read: LCA Level 1 Wages=Problem)
On March 31, 2017 USCIS issued a policy memorandum that superseded and rescinded a 12/22/00 memorandum with guidance on H-1B computer related positions issued by the NSC. This abrupt change coincidentally uproots established H-1B guidance and processes without notice or due process on the eve of the H-1B Fiscal Year Cap with 200,000+ I-129 applications enroute to USCIS for delivery by April 7, 2017.
The practical impact of this memo will be to increase Requests for Evidence and Denials on the thousands of H-1B petitions filed on behalf of IT professionals, and those with a Level 1 wage marked on their LCA/I-129 petitions are at heightened risk. The memo is in line with USCIS’ desire to place a greater emphasis on requiring IT Petitioners to list a greater than Level 1 wage on the LCA. The same concept seems to have been behind the holdings in several recent Administrative Appeals Office decisions denying IT positions on the basis of LCA Level 1 wages. AAO Decision Examples 1, 2 and 3 (PDFs).
Though Petitioners are not prohibited from paying an H-1B employee more than what is listed on the corresponding LCA, and frequently do, their H-1B petitions may now be denied because the USCIS appeared to have suddenly recalled that “Prevailing Wage Determination Policy Guidance” issued by the DOL (which provides a description of the wage levels) indicates that a Level 1 wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to have a basic understanding of the occupation. A Level 1 wage rate indicates:
Read More…
USCIS has Reached the Congressionally mandated H-1B cap for fiscal year (FY) 2017
WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) has reached the congressionally mandated H-1B cap for fiscal year (FY) 2017. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption.
USCIS will use a computer-generated process, also known as the lottery, to randomly select the petitions needed to meet the caps of 65,000 visas for the general category and 20,000 for the advanced degree exemption.
USCIS will first randomly select petitions for the advanced degree exemption. All unselected advanced degree petitions will become part of the random selection process for the 65,000 general cap. The agency will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings.
Before running the lottery, USCIS will complete initial intake for all filings received during the filing period, which ended April 7. Due to the high number of petitions, USCIS is not yet able to announce the date it will conduct the random selection process.
USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted toward the congressionally mandated FY 2017 H-1B cap. USCIS will continue to accept and process petitions filed to:
- Extend the amount of time a current H-1B worker may remain in the United States;
- Change the terms of employment for current H-1B workers;
- Allow current H-1B workers to change employers; and
- Allow current H-1B workers to work concurrently in a second H-1B position.
U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.
We encourage H-1B applicants to subscribe to the H-1B Cap Season email updates located on the H-1B Fiscal Year (FY) 2017 Cap Season Web page.
For more information on USCIS and its programs, please visit uscis.gov or follow us on Facebook (/uscis), Twitter (@uscis), YouTube (/uscis) and the USCIS blog The Beacon.
The U.S. Immigration Law Blog by Ashwin Sharma 
The Real Target of the $100,000 H-1B Fee May Be Harvard, Not Hyderabad
On Friday, the Trump administration issued an unprecedented proclamation announcing a new “supplemental entry fee” of $100,000 for foreign nationals seeking to enter the United States in H-1B status. The language was sweeping, and the initial read was that H-1B professionals and their families would face a six-figure hurdle tied to travel and reentry. Employers, immigration attorneys, and visa holders immediately scrambled to determine whether the rule applied retroactively, and if so, to whom. Panic followed. Those already abroad rushed to return to the U.S. before the policy took effect.
I was quoted by The Times of India in its article regarding the initial report. I stated that this proclamation was effectively, “Executive taxation without Congress approval”, and explained that, “Section 212(f) of the INA allows suspending entry, but it does not authorize a $100,000 charge or rewriting USCIS and DOS fee schedules by executive proclamation alone. This fee is unlawful on its face and appears entirely performative, calibrated to deliver a chilling effect on employers, and campuses.”
Then, late Saturday, came the administration’s clean-up. The Press Secretary tweeted that current H-1B holders and approved cases would not be charged and could travel and reenter as usual, and characterized the assessment as a one-time, petition-linked fee that would first show up in the next lottery cycle. More importantly, a USCIS memo and Department of State guidance followed, confirming that travel and renewals were unaffected and that the fee would apply prospectively only. USCIS’s memo put it plainly: This proclamation only applies prospectively to petitions that have not yet been filed. The proclamation does not apply to aliens who: are the beneficiaries of petitions that were filed prior to the effective date of the proclamation, are the beneficiaries of currently approved petitions, or are in possession of validly issued H-1B non-immigrant visas.” This language eased the immediate chaos for cap-subject H-1B employees at for-profit employers with petitions already filed or approved. As of now, they appear to be untouched by the proclamation and may continue to travel abroad, apply for H-1B visas, and file H-1B extensions or change-of-employer petitions. (Though I wouldn’t recommend travelling abroad at this time).
But not everyone was spared. In The Times of India’s follow-up report after the weekend guidance, I focused on who remains exposed and the possible rationale: “The proclamation still looms, quietly aligned against cap-exempt institutions that cannot afford a six-figure payout or a political war. These institutions may soon find themselves in the crosshairs. Not because they are immigrants, but because they are liberals.”
This omission for cap-exempt employment in the administration’s guidance looks like design, not oversight. Even if already approved/filed cap-subject H-1B workers can keep traveling and renewing, next fiscal year’s H-1B cap-subject cases remain at issue and will likely require litigation to resolve. Again, it is also telling that there is still no carve-out for cap-exempt employers. Universities and research centers are currently still subject to the fee and bear the heaviest burden, for now. That supports the inference that the intended targets may not have necessarily been software developers from Hyderabad, but faculty and researchers at elite liberal universities such as Harvard, which notably refused to back down when threatened with federal funding cuts by this administration. Shifting cost and risk onto the cap-exempt H-1B workforce they employ is a direct and effective strike that would impact certain institutions harder than funding cuts.