On December 3, 2018, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking that would require petitioners seeking to file H-1B cap-subject petitions to register electronically with the U.S. Citizenship and Immigration Services (USCIS) during a designated registration period. Only petitions selected under the pre-registration process would be filed during a subsequent application period that USCIS would designate. Under the proposed rule, USCIS would also change the order by which the agency selects H-1B petitions under the regular H-1B cap and the special “US advanced degree” cap. USCIS will accept public feedback on the proposed new rules until January 2, 2019.
Electronic Registration Process
Under the proposed regulation, petitioners seeking to file H-1B cap-subject petitions would be required to register electronically with USCIS during a designated registration period. The electronic registration period would begin at least 14 calendar days before the first date the H-1B filing window opens each fiscal year (April 1), and would remain open for at least 14 calendar days. USCIS would give at least 30 calendar days’ advance notice of the registration period on the USCIS website.
USCIS would then conduct the annual H-1B lottery to randomly select from the pool of timely-filed electronic registrants. The rule proposes that petitioners whose petitions are selected will be notified that they are eligible to file an H-1B petition within a designated filing period of at least 60 days. According to the proposal, petitioners would wait until they have been notified that their intended petition has been selected, and would then file during the actual petition during the designated period of at least 60 days. USCIS might stagger the issuance of notices of selection and the a registration periods that are designated or filing the petitions, and USCIS would hold some unselected cases for later selection of the H-1B cap is not reached due to denials, withdrawals or non-filing of selected registrants. USCIS could also reopen registrations if more cases are needed to fill the annual quota.
The registration process would require basic information from both the employer and the beneficiary, including:
- The employer’s name, identification number (EIN), and address;
- The employer’s authorized representative’s name, job title, and contact information;
- The beneficiary’s name, date of birth, country of birth, country of citizenship, gender, and passport number, as well as whether the beneficiary has obtained a master’s or higher degree from a U.S. institution of higher education;
- Any additional basic information requested by the registration system or USCIS.
Employers would also be required to attest that they intend to file an H-1B petition for the beneficiary in the position for which the registration is filed, among other attestations.
Petitioners would need to file a separate registration for each beneficiary and would be limited to one registration per beneficiary for the same fiscal year. USCIS is not proposing to charge a fee for electronic registration at this time.
New Order for Selecting Qualifiers for the Regular and U.S. Advanced Degree H-1B Caps
USCIS is also proposing to change the order by which the agency selects H-1B petitions under the H-1B cap and the advanced degree exemption. Under the current system, USCIS selects advanced degree cap cases before the regular H-1B cap cases. The proposed rule would reverse the selection order and count all applicants towards the number projected as needed to reach the regular H-1B cap first. Once a sufficient number of applicants have been selected for the H-1B cap, USCIS would then select applicants from the remaining pool towards the advanced degree exemption. USCIS projects that this change in the process would result in a 16% increase in the number of selected beneficiaries with a master’s degrees or higher from a U.S. institution of higher education.
Timeline for Finalizing the Regulation
USCIS has indicated it would like to finalize and implement the regulation and the electronic registration system in time for the opening of the upcoming Fiscal Year (FY) 2020 H-1B cap filing season on April 1, 2019. However, the likelihood that USCIS will finalize both by April 1, 2019 is slim, given the tight timeframe by which the agency must complete the regulatory process.
The 30-day notice and comment period opened on December 3, and will remain open until January 2, 2019. DHS must then review the comments and any final version of the regulation must address concerns raised by the public. Before a final rule can be published, it would first need to be reviewed and approved by the Office of Management and Budget (OMB). Once the rule is finalized, the government would designate the date that it will go into effect.
If the new proposed rule is not implemented before the opening of the next filing window on April 1, 2019 for the Fiscal Year 2020 H-1B cap cases, then the current rules still in effect would govern this next upcoming filing period.
Finnan, Fleischut & Associates will continue to keep our clients advised of important developments in this area. If you have specific questions about how these developments affect a current or possible future situation, please contact us.