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December 03, 2018

USCIS Proposes Pre-Registration Process for H-1B Cap Cases

On December 3, 2018, United States Citizenship and Immigration Services (USCIS) issued a proposed rule, requiring employers seeking to file H-1B cap petitions (including under the U.S. master’s degree exemption and the regular cap) to register in an electronic system during a designated registration period. The rule would also change the process by which USCIS counts H-1B petitions. The new process would run the lottery/registration for all beneficiaries and would then select from the petitions seeking the U.S. master exemption. USCIS expects that changing the order will result in a higher number of U.S. master’s degree petitions being selected.

Per statute, a limited number of H-1B work visas are available each year. Under the regular H-1B cap, 65,000 H-1B visas are available. An additional 20,000 are available under an exemption for foreign nationals (usually F-1 students) who have graduated from a U.S. college or university with a master's degree or higher. Cap-subject H-1B visas become available at the start of the government’s fiscal year on October 1 — and filings with USCIS can be made no sooner than six months in advance.

The H-1B visa is the most popular visa category for employers to obtain work authorization for key foreign national employees and is available for a wide variety of professional positions, including engineering, biology, computer science, accounting, teaching, sales/marketing and many other professional occupations. Foreign nationals who will fill a professional "specialty occupation" position can qualify for H-1B status. A "specialty occupation" is an occupation that requires at least a bachelor's degree (or the equivalent) in a specific field as a minimum requirement. The foreign national must have a bachelor's degree (or the equivalent) in the field of specialty to qualify for H-1B status.

It is important to note that not all H-1B cases are subject to the cap. Individuals, not petitions, are to be counted under the H-1B cap. Under this rule, if the foreign national listed on the petition does not already have H-1B status, the H-1B visa petition counts against the cap. Petitions not subject to the cap include H-1B extensions, petitions to change H-1B employers and petitions filed by institutions of higher education or their affiliated institutions. Cap-exempt petitioners are not impacted by the proposed pre-registration process and may submit new H-1B petitions at any time during the year, without concern for whether the H-1B cap limit has been reached.

The proposed rule is intended to streamline the process for the identification and selection of H-1B beneficiaries and is expected to reduce cost for employers since petitions will not need to be filed unless the beneficiary is selected during the registration period. This proposed rule is also intended to reduce the burden on USCIS.

The H-1B pre-registration proposal includes the following:

  • USCIS will establish a designated registration period. This mandatory registration process would start before April 1. USCIS proposes the registration period would begin at least 14 days prior to April 1. The registration period would last for at least 14 days. USCIS will give 30 days’ notice of the opening of the registration period. USCIS will post this information on their website.
  • If USCIS determines it has received more registrations than needed to reach the cap, USCIS will close the registration period and will randomly select a sufficient number of registrations needed to meet the cap.
  • All petitioners would file a registration relating to each prospective H-1B beneficiary they intend to hire. Only selected beneficiaries would then require petitions be filed on their behalf.
  • If the cap is not met during the initial registration period, USCIS will accept all registrations and will continue to accept registrations until the cap has been met.
  • Registrations will be selected in reverse as compared to how lottery selections have been made in the past. USCIS would first count all cap-subject H-1B registrations, including those that may be eligible for the advanced degree exemption, towards the regular cap until the projected number of H-1Bs needed to meet the regular cap (65,000) is reached. Once the regular cap projected number is reached, USCIS would then count those petitions eligible for the advanced degree exemption and not selected under the regular cap toward the projected number needed to reach the advanced degree exemption allocation (20,000).
  • Unselected registrations will remain on reserve in the system. These registrations will be selected if USCIS determines the cap has not been met. Unselected registrations would remain in reserve for the next fiscal year.
  • There will be no fee for registration at this time.
  • Registrations would include: employer name, employer FEIN, employer mailing address, authorized representative’s name, title and contact information and beneficiary’s name, date and country and birth, country of citizenship, gender, and passport number. If represented by an attorney, a G-28 must be submitted electronically.
  • Employers may only submit one registration per beneficiary. Employers will need to make an attestation confirming they intend to file an H-1B petition for the beneficiary. If multiple registrations are filed for the same beneficiary, all registrations for that beneficiary will be deemed invalid.
  • USCIS will closely monitor whether selected registrations result in the filing of H-1B petitions.
  • Petitioners will have 60 days to file H-1B petitions for selected beneficiaries following the notification.
  • USCIS expects there will be multiple filing periods during each fiscal year.
  • If USCIS is not able to implement the proposed pre-registration system for this fiscal year, it will issue a notice on its website. Although the registration period may be suspended, USCIS will still reverse the order in which it counts petitions.

Reversing the order of selection is intended to increase the chance of selection for workers with U.S. master’s degrees from U.S. universities, in line with the administration’s goal to grant H-1B visas to the most-skilled and highest paid beneficiaries as directed by the April 18, 2017, Buy American and Hire American executive order.

Comments to the proposed rule are due by January 2, 2019.

The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.

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