INTRODUCTION
On December 3, 2018, United States Department of Homeland Security (DHS) issued a Proposed Rule in the Federal Register on H-1B pre-registration for cap subject petitions. The Proposed Rule would be open for public notice and comment for a period of 30 days until January 02, 2019. The Final Rule will be published after review and incorporation of public comments.
The proposed rule is set to streamline the current system of conducting the H-1B selection process for annual H-1B lottery through an online system for petitioners to pre-register their list of prospective employees. Also, USCIS is set to reverse the order in which the lottery is conducted (Regular quota cases are picked first followed by Master’s cap), in an effort to increase the selection of US Master’s degree cases – this flip will be followed for FY 2020 even if the Registration System is not in place. USCIS is trying to increase the number of H-1Bs selected and awarded to highly skilled and highly paid workers in line with the mandate of the “Buy American, Hire American” Executive Order.
KEY ELEMENTS OF THE PROPOSED RULE
1. Time Line
The electronic registration would open at least 14 calendar days prior to the first day of filing each fiscal year. A 30-day advance notice will be provided prior to the opening of the initial registration period.
2. Registration Requirements
Petitioners are required to electronically submit registrations for each resource. Details to be submitted would include:
a. The employer’s name, FEIN and mailing address;
b. The employer’s authorized representative’s name, job title and contact information;
c. The beneficiary’s full name, date of birth, country of birth, country of citizenship, gender and passport number;
d. Whether the beneficiary has obtained a master’s or higher degree from a U.S. institution of higher education;
e. The employer’s attorney or accredited representative, if applicable; and
f. Any additional basic information requested by the USCIS.
3. Lottery Process
a. Petitioners need to establish within registration system that contents of each registration are true and accurate and that the Petitioner would employ the Beneficiary by upholding the registration norms;
b. Proposed registration system bars Petitioners from submitting multiple applications for same Beneficiary during the same fiscal year;
c. Each registration is to be submitted along with a valid job offer and intent to employ the said Beneficiary;
d. No substitution of Beneficiaries will be allowed;
e. USCIS proposes to maintain a check and monitor on the selected registrations and Petitioners to see if selected Beneficiaries results in filing. If it is found that a Petitioner has abused the registration system by not filing petitions for selected Beneficiaries, they would be held accountable;
f. USCIS in contrast to previous years would first select number of petitions to sufficiently meet the regular cap (i.e. 65,000) first. USCIS seeks to place all Master’s cap eligible people through that regular quota and then run all unselected eligible people through the Master’s Cap (20,000). USCIS estimates this will increase the overall selection of Beneficiaries with US Master’s degrees from US universities by as much as 16 percent (i.e., 5,430 applicants).
4. Other
a. For unselected registrations, USCIS will maintain a reserve for the said fiscal year. USCIS maintains discretion to increase the number of registrations required to meet H-1B Regular or Master Cap. USCIS may select additional registrations from the reserve and if necessary, may reopen registrations to meet required numbers;
b. USCIS will inform petitioners whose H-1B petitions are chosen in the lotteries. They will be then provided approximately 2 months to gets LCAs approved and submit H-1B petitions with filing fees;
c. USCIS may also opt for multiple filing periods to ensure smooth submission of H-1B petitions.
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