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Merit-Based H-1B Program Proposed

This article is excerpted from the website of the U.S. Citizenship and Immigration Services (USCIS) and compiled by us to present the content in a more reader-friendly manner for international students and workers.

The Department of Homeland Security (DHS) announced a notice of proposed rulemaking – Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens.

What will be different?

(1)  It would require petitioners seeking to file H-1B cap-subject petitions to first electronically register with USCIS during a designated registration period. 

(2) USCIS would reverse the order by which USCIS selects H-1B petitions under the H-1B cap and the advanced degree exemption, likely increasing the number of beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected for an H-1B cap number, and introducing a more meritorious selection of beneficiaries.   

What can USCIS do under the proposed rule?

(1) to temporarily suspend the registration process during any fiscal year in which USCIS may experience technical challenges with the H-1B registration process and/or the new electronic system, and

(2) to up-front delay the implementation of the H-1B registration process past the fiscal year (FY) 2020 cap season, if necessary to complete all requisite user testing and vetting of the new H-1B registration system and process.

Who will be benefited? 

(1) Foreign nationals with most-skilled and highest-paid

Currently, when the H-1B cap and the advanced degree exemption are both reached within the first five days that H-1B cap petitions may be filed, the advanced degree exemption is selected prior to the H-1B cap.

The proposed rule would reverse the selection order and count all registrations or petitions towards the number projected as needed to reach the H-1B cap first. Once a sufficient number of registrations or petitions have been selected for the H-1B cap, USCIS would then select registrations or petitions towards the advanced degree exemption.

This proposed change would increase the chances that beneficiaries with a master’s or higher degree from a U.S. institution of higher education would be selected under the H-1B cap and that H-1B visas would be awarded to the most-skilled and highest-paid beneficiaries.

Importantly, the proposed process would result in an estimated increase of up to 16 percent (or 5,340 workers) in the number of selected H-1B beneficiaries with a master’s degree or higher from a U.S. institution of higher education.  

(2) USCIS and U.S. companies (or the petitioners)

Because 

  • shifting to electronic registration would reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process.
  • the proposed rule would help alleviate massive administrative burdens on USCIS since the agency would no longer need to physically receive and handle hundreds of thousands of H-1B petitions and supporting documentation before conducting the cap selection process.
  • this would help reduce wait times for cap selection notifications.
  • the proposed rule limits the filing of H-1B cap-subject petitions to the beneficiary named on the originally selected registration, which would protect the integrity of this registration system

Submit Public Comments

Additional information on the Merit-based H-1B Program proposed rule is available in the Federal Register. Public comments may be submitted starting Monday, December 3rd, 2018 when the proposed rule publishes in the Federal Register and must be received on or before January 2, 2019. 

For more information on USCIS and our programs, please visit uscis.gov.

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