The Department of Homeland Security (DHS) has proposed a plan to require employers to pre-register for the H-1B cap selection system. The proposed regulation is scheduled to be published for public comment on December 3, 2018 and will be open for 30 days. DHS aims to have the new system finalized and in place for the Fiscal Year 2020 cap filing period, however, it could be deferred based upon the necessary implementation period.

The proposed amendments to the H-1B cap system would require employers seeking to file H-1B petitions to first electronically register with the United States Citizenship and Immigration Services (USCIS) during a designated registration period. At the end of the initial registration period, if USCIS determines that it has received more registrations than needed to reach the H-1B cap for the fiscal year, it would close the registration period and randomly select a sufficient number of electronic registrations as needed to meet the cap. The H-1B cap-subject petitions could only be filed on behalf of a beneficiary whose registration was selected by USCIS.

The proposed rule would also reverse the order in which the selection process takes place. In years past, when the regular (bachelor's degree) H-1B cap and the advanced degree exemption cap were reached, the advanced degree petitions were selected prior to the regular H-1B cap petitions. However, under the new proposed rule, USCIS would count all registrations towards the number projected for the regular H-1B cap first, and once a sufficient number of registrations are selected for the H-1B regular cap, USCIS will then select the registrations towards the advanced degree exemption. DHS believes this change in process will increase the chances that beneficiaries with a master's degree or higher from a U.S. institution will be selected under the H-1B cap, and that the visas will be awarded to the most-skilled and highest paid beneficiaries. 

Proposed registration process

  • Employers will file an online form which provides basic data about the organization and the prospective foreign national employee(s) to be sponsored for H-1B classification including, educational background(s) and position(s) offered. 
  • Employers will submit a separate registration form for each foreign national employee being sponsored for H-1B classification.
  • Employers can expect the registration period to occur 14 calendar days prior to April 1; the registration period is expected to last for approximately 14 days.

Proposed H-1B selection process>

  • The H-1B quota will remain at 85,000 (65,000 for bachelor's degrees; 20,000 for U.S. advanced degrees) for Fiscal Year 2020.
  • Registrations will be selected on a rolling basis until a sufficient number of registrations have been received. Unselected registrations will remain on reserve in the system for the applicable fiscal year. If USCIS determines that it needs to increase the number of registrations to meet the cap, USCIS will select from registrations on reserve. 
  • The order of the selection process is expected to change under the proposed rule - the regular cap lottery will run first. 
  • Any advanced degree registrations which are not selected in the regular lottery will be placed into a second lottery for only the advanced degree registrations. 

Proposed filing process

  • H-1B petitions and supporting documentation will be filed with USCIS for only those foreign national employees whose registrations are selected in the lottery. There will be no substitutions permitted.
  • A specific period will be provided to the employer if the registration(s) are selected for filing the H-1B petition(s).
  • USCIS may reopen registrations if more cases are needed to fulfill the cap quota due to potential rejections or denials.

Pryor Cashman will be closely monitoring the H-1B cap registration proposal, and will provide updates as the proposal moves through the regulatory process.

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