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New Proposed Rules Expected Soon: H-4 EAD Elimination and Change to FY H-1B Lottery Process

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New Proposed Rules Expected Soon: H-4 EAD Elimination and Change to FY H-1B Lottery Process

October 19, 2018

The Office of Management and Budget (OMB) recently updated their website relating to 2 notices of proposed rulemaking, indicating the Department of Homeland Security (DHS) will likely soon be announcing proposed changes.  After formal publication of the new proposed rules, there will be a Notice and Comment period.  Following review of comments, the government can then issue a final rule or regulations, which usually take effect immediately. 

The 2 upcoming changes are:

  • Elimination of the H-4 EAD: we previously reported that the DHS was planning to eliminate this rule. The OMB notice was recently updated with a likely date of November 2018 to start the process. 
  • Change to the Fiscal Year H-1B Lottery process: the DHS wants to change the H-1B regulations to provide a pre-registration process for employers filing H-1B petitions which are subject to the H-1B cap. This likely will require employers to provide information about themselves and the beneficiary, and then a lottery will be held from the pre-registrations.  Only those selected will then submit the H-1B petition and supporting documents.  Given the amount of time required for publication of proposed rules, followed by the mandatory Notice and Comment period, it is not certain that any new rule will impact the Fiscal Year 2020 H-1B lottery (starting April 1, 2019). 

In the summary on the OMB website, the DHS lists the need for this second change as: “Consistent with the Buy American and Hire American, EO 13788’s direction to suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries, this regulation would help to streamline the process for administering the H-1B cap and increase the probability of the total number of petitions selected under the cap filed for H-1B beneficiaries who possess a master’s or higher degree from a U.S. institution of higher education each fiscal year.”

Since no proposed rules (or final rules, of course) have been published yet, we cannot provide more details.

Weaver Schlenger LLP does recommend that anyone eligible and wishing to apply for an H-4 EAD or H-4 EAD extension, does so without delay.

We will continue to provide updates on our website.

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