A regulation that would change the H-1B lottery system is expected to be proposed by U.S. Citizenship and Immigration Services any day now. The proposal has cleared review by the Office of Management and Budget, the first step in the regulatory process.

Key points:

  • USCIS is seeking to implement the regulation before April 1, the start of H-1B cap filing season. Depending on when the proposal is published in the Federal Register, the rule could be in place by this coming cap season. USCIS must allow members of the public to submit comments and then must review and consider the comments in formulating a final regulation.
  • The rule is expected to require that petitioning employers preregister for the H-1B lottery before they submit completed petitions. Employers may be required to register each H-1B worker they intend to sponsor by filling out an online form, which would contain initial information about the company and the H-1B candidate, before April 1. Companies would be permitted to file completed petitions only for candidates whose registrations are selected.
  • USCIS is also expected to change the order of the two H-1B lottery drawings, conducting the advanced-degree drawing before the drawing for undergraduate-degree holders. This reform aims to increase the likelihood that applicants with a U.S. master’s degree or higher will be selected.
  • USCIS has also stated its intention to change the allocation of H-1B cap petitions to prioritize those based on wages, education or other criteria. It is not yet known whether this proposed rule would include such changes.

Background: USCIS has indicated several times that it intends to overhaul the H-1B lottery system, most recently in its semiannual regulatory agenda.

BAL Analysis: The proposed regulation is expected to be published in the Federal Register in the coming days and may take at least four months to become final. The publication of the proposed rule will initiate a public comment period and employers are encouraged to submit comments. Employers should anticipate that changes to the H-1B lottery are likely to affect the upcoming cap season and begin to plan now by identifying H-1B cap candidates and assessing eligibility.

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

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