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DHS Finalizes Changes to H-1B Selection Process

On January 31, 2019, the Department of Homeland Security (DHS) published its H-1B registration rule in the Federal Register, formalizing changes to the H-1B selection process. The new regulation, which will take effect on April 1, 2019—the same day that the annual H-1B lottery opens—will make two changes to the H-1B lottery selection process.

The most significant change creates an electronic registration system for all H-1B lottery filings. DHS suspended this change for the upcoming April 2019 lottery but, once implemented, employers will be required to register all H-1B candidates for a spot in the selection lottery. An H-1B petition may be submitted only if the candidate’s registration is selected. DHS also modified its original proposal and will offer only a single 90-day filing period to submit an H-1B petition, as opposed to multiple, staggered 60-day filing periods as originally proposed.

The second change will be effective for the April 2019 lottery. This change will reverse the order in which U.S. Citizenship and Immigration Services (USCIS) selects H-1B petitions and places a greater emphasis on petitions filed on behalf of candidates with advanced degrees from U.S. universities. The current USCIS practice selects the U.S. master’s degree petitions in the first lottery. Under the new regulation, DHS will conduct a first lottery that includes all petitioners. Once DHS has selected enough petitions to fulfill the 65,000 H-1B quota, DHS will run a separate lottery for the 20,000 spots reserved for those who are eligible for the advanced-degree exemption. DHS anticipates that the change will result in the selection of 5,340 more petitions from H-1B candidates with a master’s or higher degree from a U.S. university.

While the potential long-term benefits of the new registration system are likely to be debated for some time, there has been at least one short-term benefit. DHS has finally provided clarification about the selection process USCIS will use during the April 2019 lottery. Immigration attorneys and employers had been in limbo since December 2018, wondering if DHS would try to implement the new registration system before the upcoming cap season and, if so, how they should prepare. Based on the final rule, employers will continue to prepare for the upcoming H-1B cap season under the same process used in previous years.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume IX, Number 31


About this Author

Stephen Smalley, Ogletree Deakins Law Firm, Immigration Law Attorney

Mr. Smalley is the Managing Director of Emigra Ogletree Worldwide, a partnership of two leading firms, Ogletree Deakins and Emigra. Emigra Ogletree Worldwide provides a single-source for global and U.S. immigration services. Emigra Ogletree Worldwide brings unique advantages to our clients while providing seamless and consistent immigration services throughout the world. As Managing Director, Mr. Smalley oversees the day to day management of the organization, including oversight of work visa preparation to more than 100 countries worldwide.

Melissa Manna, Ogletree Deakins Law Firm, Raleigh, Immigration Practice Group Writer
Immigration Practice Group Writer

Melissa Manna is an Immigration Practice Group Writer. Her primary focus is writing and editing legal articles relating to immigration for the firm’s online and print publications, websites, and newsletters.

Prior to joining Ogletree Deakins, Melissa spent 9 years as in-house counsel at TowerCo, one of the largest independent wireless tower companies in the U.S., representing the company in all aspects of commercial real estate. During that time she managed due diligence, advised and implemented risk management solutions, and closed transactions valued in the hundreds of millions of dollars.

Before TowerCo, she was an attorney with Alan Gordon Immigration and Naturalization Law in Charlotte, NC, representing large and small companies, investors, entrepreneurs, and families in all stages of the immigration process. She regularly appeared before U.S. Citizenship and Immigration Services to advocate on behalf of clients, as well as the EOIR Immigration Court in Atlanta to defend clients against removal and deportation.

Melissa received her J.D. from Pennsylvania State University, Dickinson School of Law and her B.A. in Journalism from The College of New Jersey. She is licensed by the North Carolina Bar.