In early January we wrote about a USCIS proposal to create a pre-registration system for new H-1B cap cases in order to make the H-1B cap application process more efficient and to eliminate waste associated with H-1B cap petitions which are filed on or shortly after April 1st (when the H-1B cap filing window opens) but are not ultimately selected because the demand of H-1B cap petitions exceeds the available 65,000 (plus 20,000 for U.S. Masters degree holders) H-1B visas.
Proposed Rule Published Today, March 3, With a 60-day Comment Period
Today USCIS published a proposed rule which describes the pre-registration process in more details and establishes the procedures for pre-registration, selection and actual H-1B petition filing. The rule has a 60-day comment period during which the public can provide comments to USCIS with respect to the new regulations. Our office plans to do so as there are some provisions which substantially alter the process to our clients’ disadvantage.
The Proposed H-1B Pre-Registration System
The proposed rule would require employers who wish to file for a cap-subject H-1B petition to submit a simple electronic registration for each H-1B case the employer wants to file. The electronic submission would open in early March and for each H-1B petition would require (1) the employer’s name, employer identification number (FEIN), and employer’s mailing address; (2) the authorized representative’s name, job title, and contact information (telephone number and email address); and (3) the beneficiary’s full name, date of birth, country of birth, country of citizenship, gender and passport number.
Once USCIS receives a number of pre-registrations over a certain period of time, they would evaluate the H-1B visa demand and if the demand exceeds the available 65,000 plus 20,000 visa numbers, they would run a random lottery to determine which of the pre-registrations would be allowed to submit a full H-1B petition. Those selected would be notified electronically and would be allowed to print a selection confirmation page which would then be included with the H-1B petition.
Upon selection in the H-1B cap, an employer would have 60 days from the date of notification to submit the actual full H-1B petition for the beneficiary named, including the applicable Labor Condition Application (LCA). H-1B petitions which are selected but are filed after the 60-day filing deadline would be rejected.
If the demand is lower than the available H-1B visas, the pre-registration system would continue to accept new pre-registration submissions until the H-1B cap is reached. USCIS contemplates creating a waitlist system to handle pre-registrations which are not selected initially, but may be selected at a later time should the number of allocated H-1B pre-registrations exceeds the actual H-1B petitions filed and accepted for processing.
USCIS’s Rationale of H-1B Cap Filing Pre-Registration
The new proposed Internet-based registration system allows employers to complete a much shorter and less expensive registration process for consideration of available H-1B cap numbers. The new system will also relieve a significant administrative burden and expense from USCIS. This proposed rule is estimated to reduce costs for H-1B employers, or at least eliminate waste associated with filing of H-1B petitions which may be subsequently rejected due to reaching of the H-1B cap. USCIS is also estimated to realize cost-savings from this process.
Important Note: Published Rule is Not Final; This Year’s H-1B Cap Filing Season Is Not Affected
It is very important to stress that this is only a proposed rule which is subject to a 60-day comment period and further USCIS revisions. This year’s H-1B cap season is not affected by this rule and it would continue under the current system where all H-1B cap filings are filed in their entirety on or after April 1st, without any pre-registration requirements.
This is an important development in the H-1B cap filing season and we will continue monitoring the proposed rule throughout and after the 60-day comment period. Please feel free to subscribe to our weekly newsletter to obtain timely updates on this and related issues. Also, feel free to contact us with any questions, comments or if our office can be of help.
USCIS Publishes Proposed Rule on H-1B Cap Pre-Registration Requirement
In early January we wrote about a USCIS proposal to create a pre-registration system for new H-1B cap cases in order to make the H-1B cap application process more efficient and to eliminate waste associated with H-1B cap petitions which are filed on or shortly after April 1st (when the H-1B cap filing window opens) but are not ultimately selected because the demand of H-1B cap petitions exceeds the available 65,000 (plus 20,000 for U.S. Masters degree holders) H-1B visas.
Proposed Rule Published Today, March 3, With a 60-day Comment Period
Today USCIS published a proposed rule which describes the pre-registration process in more details and establishes the procedures for pre-registration, selection and actual H-1B petition filing. The rule has a 60-day comment period during which the public can provide comments to USCIS with respect to the new regulations. Our office plans to do so as there are some provisions which substantially alter the process to our clients’ disadvantage.
The Proposed H-1B Pre-Registration System
The proposed rule would require employers who wish to file for a cap-subject H-1B petition to submit a simple electronic registration for each H-1B case the employer wants to file. The electronic submission would open in early March and for each H-1B petition would require (1) the employer’s name, employer identification number (FEIN), and employer’s mailing address; (2) the authorized representative’s name, job title, and contact information (telephone number and email address); and (3) the beneficiary’s full name, date of birth, country of birth, country of citizenship, gender and passport number.
Once USCIS receives a number of pre-registrations over a certain period of time, they would evaluate the H-1B visa demand and if the demand exceeds the available 65,000 plus 20,000 visa numbers, they would run a random lottery to determine which of the pre-registrations would be allowed to submit a full H-1B petition. Those selected would be notified electronically and would be allowed to print a selection confirmation page which would then be included with the H-1B petition.
Upon selection in the H-1B cap, an employer would have 60 days from the date of notification to submit the actual full H-1B petition for the beneficiary named, including the applicable Labor Condition Application (LCA). H-1B petitions which are selected but are filed after the 60-day filing deadline would be rejected.
If the demand is lower than the available H-1B visas, the pre-registration system would continue to accept new pre-registration submissions until the H-1B cap is reached. USCIS contemplates creating a waitlist system to handle pre-registrations which are not selected initially, but may be selected at a later time should the number of allocated H-1B pre-registrations exceeds the actual H-1B petitions filed and accepted for processing.
USCIS’s Rationale of H-1B Cap Filing Pre-Registration
The new proposed Internet-based registration system allows employers to complete a much shorter and less expensive registration process for consideration of available H-1B cap numbers. The new system will also relieve a significant administrative burden and expense from USCIS. This proposed rule is estimated to reduce costs for H-1B employers, or at least eliminate waste associated with filing of H-1B petitions which may be subsequently rejected due to reaching of the H-1B cap. USCIS is also estimated to realize cost-savings from this process.
Important Note: Published Rule is Not Final; This Year’s H-1B Cap Filing Season Is Not Affected
It is very important to stress that this is only a proposed rule which is subject to a 60-day comment period and further USCIS revisions. This year’s H-1B cap season is not affected by this rule and it would continue under the current system where all H-1B cap filings are filed in their entirety on or after April 1st, without any pre-registration requirements.
This is an important development in the H-1B cap filing season and we will continue monitoring the proposed rule throughout and after the 60-day comment period. Please feel free to subscribe to our weekly newsletter to obtain timely updates on this and related issues. Also, feel free to contact us with any questions, comments or if our office can be of help.
About the Author: Dimo Michailov
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The Capitol Immigration Law Group has been serving the business community for over 15 years and is one of the most widely respected immigration law firms focused solely on U.S. employment-based immigration. Disclaimer: we make all efforts to provide timely and accurate information; however, the information in this article may become outdated or may not be applicable to a specific set of facts. It is not to be construed as legal advice.