DHS Finalizes New Procedures for Conducting H-1B Cap Selection – New “Pre-filing” Electronic Registration” Deferred until Next Year
On January 31, 2019, the Department of Homeland Security (DHS) published a Final Rule that will 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 will thereafter be filed during a subsequent application period that USCIS will designate. Under the proposed rule, USCIS will 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. The Final Rule is effective April 1, 2019; however, the new electronic pre-registration process will only be implemented next year (2020) for the so-called Fiscal Year 2021 H-1B Cap. This delay in implementation will provide USCIS with sufficient time to develop and test the electronic registration system before rolling it out.
Electronic Registration Process
Under the new rule that will be implemented for the FY 2021 (April 2020) filing period, petitioners seeking to file H-1B cap-subject petitions will be required to register electronically with USCIS during a designated registration period. The electronic registration period will begin at least 14 calendar days before the first date the H-1B filing window opens each fiscal year (April 1), and will remain open for at least 14 calendar days. USCIS would give at least 30 calendar days’ advance notice of the registration period by publishing it on the USCIS website. The petitioner will file a separate electronic registration for each beneficiary for whom it hopes to obtain H-1B status, and petitioners are permitted to register each individual beneficiary only once during the designated registration period for that fiscal year. At this time, there is no fee for filing an electronic registration.
USCIS will then conduct the annual H-1B lottery to randomly select from the pool of timely-filed electronic registrants. Petitioners of registrations that are selected will be notified that they are eligible to file an H-1B petition within a designated filing period of at least 90 days. USCIS would later reopen registrations if more cases are needed to fill the annual quota. Under the proposed regulation, USCIS could ‘stagger’ the actual filing periods for cases selected under the lottery following electronic pre-registration; but under the Final Rule, the application period will not be staggered, and all selected petitions will need to be filed during the same 90-day period.
While not fully specified in the Final Rule, 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. The Final Rule makes provision for attorneys to be able to file electronic registrations on behalf of the prospective H-1B petitioner.
As per existing regulations, beneficiaries of H-1B petitions must be fully qualified for H-1B status at the time that the petition on their behalf is filed; for example, if a beneficiary is being filed for under the U.S. Advanced Degree category, the beneficiary must have fully earned that degree at the time that the H-1B petition is filed. The beneficiary is not required to have completed the degree or other requisite requirement prior to submittal of the electronic registration.
New Order for Selecting Qualifiers for the Regular and U.S. Advanced Degree H-1B Caps
In accordance with the new Rule, USCIS is also changing 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 new Rule reverses the selection order and counts 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 will 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.
This part of the new Rule will be in effect for this upcoming H-1B cap filing period that starts April 1, 2019.
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.