New H-1B Regulation “Registration Requirement For Petitioners Seeking To File H-1B Petitions On Behalf Of Cap-Subject Aliens” Becomes Final Changing The Order Of Selection But Delaying Pre-Registration System

As published in the Immigration Daily on February 1, 2019

The final rule will only have one component taking effect on April 1, 2019, the flip-flopping of the order of petition selection of U. S. Masters and higher degrees vis-à-vis bachelors and advanced foreign/U. S. for-profit institution degrees. The second part, the pre-selection system for organizations to register ahead of time for the opportunity to file cap subject petitions, has been postponed for this year.  Even in the proposed rule, U.S.C.I.S.  was hesitant on when it could be implemented, and many including this writer believed that it was nigh impossible for the system to come into being for this year’s H-1B selection (See “Article: Comment on U.S.C.I.S. New H-1B Proposed Regulation by Alan Lee, Esq., Immigration Daily, January 2, 2019).

Changing the order of selection by allowing all of the U. S. Master and higher degree cases to be put in the regular cap case selection, and then allowing the unselected to claim the U. S. Masters cap quota of 20,000+ numbers instead of running the U. S. Masters selection for the exclusive 20,000+ numbers first and then allowing the unselected to be put in the later regular cap selection was estimated by U.S.C.I.S. to yield another 16% or 5340 more numbers to U. S. Masters degree holders.

Was this a good strategy to favor those with U. S. advanced Masters or higher degrees? That is questionable as it is not merely a question of bachelors versus masters and higher degrees, but the exclusion of many persons who have had years of experience that those with recent advanced U. S. degrees do not have. Many with bachelor’s, master’s and PhD degrees from other countries have acquired overseas skills over the years in the STEM fields which are heavily in demand in the U. S. and other countries.

This writer believes that the change in regulation applies mainly to those who have just acquired U. S. Masters degrees, many of whom have no relevant experience other than internships or externships. While they are desirable for the advanced knowledge that they have acquired, those with bachelor’s or advanced degrees from other countries and years of working in a particular field are oftentimes more essential to petitioning organizations as they do not have as much of a learning curve as U. S. Masters graduates with little or no real life experience.

On the pre-selection system, the agency noted that, “USCIS is suspending the registration requirement for the fiscal year 2020 cap season to complete all requisite user testing of the new H-1B registration system and otherwise ensure the system and process are operable.” In response to comments, it is increasing the filing time period to 90 days instead of 60 days after selection, a change that would make it even more unlikely for the system to begin in FY 2020. In the final rule, it also eliminated the idea of staggered filings because of concerns over the potential for negative impact for beneficiaries relying on the existing cap gap provisions under which beneficiaries must still be in OPT status on the date of filing to be eligible for cap gap protections.