On December 3, 2018, the Department of Homeland Security (DHS) published a proposed regulation in the Federal Register that would impose an internet-based registration requirement for cap subject H-1B petitions.
The proposal is very complex and contains a large number of technical amendments to the existing H-1B cap system. The pre-publication copy runs 139 pages on 8 by 11 paper, double spaced.
The stated intent of the proposal is to reduce costs and administrative burdens for both petitioners and the government.
Here are the key take-aways for employers planning to submit H -1B cap petitions for the upcoming government fiscal year.
Timing
This is a “proposed” regulation with a 30-day comment period. It is likely that hundreds of comments will be submitted.
USCIS plans to announce the opening of the first registration period as part of the publication of the final regulation but offers no estimate of when that might be.
We believe it will be extremely difficult for DHS to implement this registration process for the upcoming fiscal year. The internet-based registration process, described in more detail below, has yet to be developed. DHS also must evaluate all of the comments and obtain clearance for the final regulation from the Office of Management and Budget (OMB). That process typically takes 6-12 months after the publication of a proposed regulation.
But with this administration you never know.
Nevertheless, we recommend that our clients prepare H-1B cap petitions for filing on April 1 just as we have in past years..
How the Registration Process Will Work
Under the proposal, all petitioners (or their attorneys) must complete an online registration form on a platform to be developed and hosted at www.uscis.gov. DHS believes this can be managed using their existing software and hardware environment. The proposal cites the Department of Labor electronic filing system as an example of how an agency can effectively implement this type of system.
The registration period would be open for 14 calendar days immediately prior to April 1 each year. The public would receive 30 days prior notice of when the registration process will open. USCIS would monitor the number of filings. If more registrations are filed that the available slots, the registration would be closed and a lottery would be conducted similar to the current system.
If fewer registrations are received than the available slots (a highly unlikely scenario), the registration process would remain open and USCIS would monitor additional filings on a rolling basis. The registration process would be closed when the quota is met.
Unselected registrations would be held in reserve if it is determined that additional cap numbers are available.
Information that must be submitted in the registration process will include, but not be limited to, the following:
- Employer’s name, EIN, and address.
- Employer’s authorized representative’s contact information.
- Beneficiary’s name, date of birth, country of birth, country of citizenship, gender and passport number.
- Whether the beneficiary has an advanced U.S. degree.
- Contact information for the employer’s attorney or other authorized representative.
Only those employers whose registration is selected in the lottery will be eligible to file their H-1B cap petition with USCIS. An employer may file only one registration for a foreign national in each fiscal year. Substitution of beneficiaries in selected registrations will not be permitted. The employer must attest that it intends to file an H-1B petition for the beneficiary if the registration application is selected. DHS will do data mining to identify employers who may be attempting to flood the system with non-meritorious filings or otherwise engage in fraud or abuse.
Employers whose registration is selected will have a 60-day window in which it must file the H-1B cap petition. Failure to file within the 60-day period will result in the rejection or denial of a late-filed petition, and the approved registration would also be void.
DHS proposes to “stagger” the 60 day filing windows to balance its workload. DHS plans to have filing windows of April 1-May 31, May 1- June 30, and so on.
Attorney Representation
Attorneys would be required to file a single G-28 electronically once per fiscal year for each employer they represent that will be filing registration applications for H-1B cap petitions. A paper G-28 would still be required with each H-1B cap petition that is filed after selection in the lottery.
Change to the Counting Methodology
Under the current system, USCIS conducts the advanced U.S. degree lottery (20,000 spots) first with unselected petitions spilling down to the regular cap (65,000 spots) lottery. USCIS proposes to reverse the order of conducting the lottery. In the future, the regular lottery would be conducted first with all registrations participating in the lottery. When the regular cap is filled all remaining advanced degree petition registrations would participate in the advanced U.S. degree lottery.
USCIS believes the change will result in more advanced U.S. degree petitions being selected overall.