DHS Proposes Merit-Based Rule for H-1B Visa Program
On December 3, 2018, DHS announced that for the FY2020 H-1B Cap filings, USCIS would reverse the order by which the agency 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.
Currently, in years when the H-1B cap and the advanced degree exemption are both reached within the first five days of the H-1B cap filing season, 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. The 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, which aligns with President Trump’s Buy American and Hire American Executive Order issued on April 18, 2018.
It is predicted that the proposed process would result in an estimated increase of up to 16% (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.