INTRODUCTION
On October 17, 2018, U.S. Department of Homeland Security (DHS) released its “Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions and Regulatory Plan” which provides the public an overview of anticipated federal regulatory activity in the upcoming months.
The Agenda includes a proposed regulation titled “Registration Requirement for Petitioners seeking to File H-1B petitions on Behalf of Cap-Subject Aliens.” The text of the H-1B Registration Rule has not been published but the Unified Agenda describes it as follows:
“… This Rule proposes an electronic registration program…. This action is being considered because the demand…has often exceeded the numerical limitation. The Rule is intended …. To more efficiently manage the intake and selection process for these H-1B petitions.”
OMB’s review is currently pending and upon completion a Notice of Proposed Rulemaking will be published in the Federal Register that will be open to public for notice and comment. Though, the text of the proposed rule has not been made public, it is expected that the rule could closely represent the 2011 Proposed Rule on this topic, which was never finalized.
2011 PROPOSED RULE ON PRE-REGISTRATION
USCIS had issued a similar proposal in 2011, which could be a model for USCIS’s forthcoming regulation. The 2011 proposal had called for the establishment of an Advance Registration System and they had proposed the following:
1.Pre-registration period: Pre-registration period could occur before the usual April 1 opening day of cap filing season. To register for the lottery, employers would file a short form that provides basic information about the company, the job offer and the prospective foreign employee. Employers would file a separate registration for each foreign beneficiary.
2.Cap selection: USCIS would select the number of registrations estimated to exhaust all available visas to meet the 85,000 H-1B quotas. Employers would then file petitions only for the selected registrations. The registration system would save employers the currently imposed effort and expense of submitting H-1B petitions, as well as Labor Condition Applications (LCA), for workers who would be unable to obtain visas under the statutory cap. However, USCIS would retain the cap lottery system and use the lottery to select H-1B petitions eligible for filing alongside the proposed pre-registration system.
3.Filing period: Registrations that were selected would be asked to submit the case files along with supporting evidence. If their cases are selected, employers would be required to submit their cap petitions within a specific timeframe, which could be brief.
4.Wait list: USCIS had also proposed to create a wait list for additional cases if the expected numbers for quota is not reached due to petition rejections or withdrawals, or if an employer decides not to file a petition for a selected registration.
CONCLUSION
USCIS is currently aiming to implement the pre-registration process for the FY 2020 Cap season. However, it is not clear that USCIS will be able to complete the regulatory approval process on time. The regulation can be implemented only after it is approved and finalized – a process that typically takes several months. As per the 2011 proposal, establishing an advance registration process for U.S. employers seeking to file H-1B petitions for foreign workers in specialty occupations can minimize administrative burdens and expenses related to the H-1B petition process. GLF will closely follow OMB’s response as well as the rule making process and will continue to follow further developments in this matter. GLF will provide updates through our GLF Newsletter as and when they become available.
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GLF will continue to follow further developments in this matter and we will provide updates through our Newsletter as and when they become available.
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