Today, the United States Citizenship and Immigration Service (USCIS) published a Notice of Proposed Rulemaking (NPRM) titled “Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens” that will implement an electronic pre-registration process for H-1B cap petitions wherein a full H-1B petition would be submitted only after acceptance in the pre-registration lottery. The change stems from directives in the April 2017 “Buy American, Hire American” executive order, which call for reforms to the H-1B visa program to ensure that H-1Bs go to the “most-skilled” and “highest-paid” foreign workers. The rule aims to streamline the H-1B lottery process and increase the probability of selection for H-1B beneficiaries who possess a U.S. master’s or higher degree.
WHAT DOES THIS MEAN
By way of background, each fiscal year a total of 85,000 H-1B visas are made available, 20,000 of which are set aside for U.S. advanced degree holders. Historically, in order to have petitions considered in the H-1B lottery in a given fiscal year, employers had to file a fully-prepared petition with USCIS during the first five (5) business days of April. If more petitions were filed in the first five days than there were H-1B visas available, USCIS would run a two-step lottery, first for the 20,000 advanced degree H-1Bs and then for the remaining 65,000 H-1Bs.
The proposed rule USCIS released today includes more details on the pre-registration period during which employers will submit data on each individual beneficiary they wish to sponsor for an H-1B visa, and includes a strict prohibitions on multiple registrations for the same beneficiary by the same employer. The pre-registration period would last a minimum of 14 calendar days and USCIS would provide at least 30-days notice prior to opening the pre-registration period for the fiscal year. Following the pre-registration, the lottery selection process would take place using the data provided during the pre-registration process. Following the lottery, petitioners will then have a specific period of time (at least 60 days) to then file full H-1B cap cases for those cases selected in the pre-registration lottery. The new rule also provided a “waiting list” for cases not initially selected but who could be invited to submit full petitions if the full H-1B quota was not reached due to petition rejections, denials, withdrawals or where an employer never filed a full petition for a beneficiary after pre-registration and selection in the lottery.
The proposed rule also switches the order in which the lottery is run. More specifically, during the registration process petitioners would provide specific information for each foreign national for whom they are seeking H-1B sponsorship, including their name, passport information, educational credentials, etc. USCIS would then use this registration data to run petition beneficiaries through the lottery process, first running all individuals through the regular cap of 65,000 visas and then, any U.S. advanced degree holders not selected in the regular cap lottery would be run through the second lottery for one of the 20,000 advanced degree H-1B visa numbers. The agency has stated that reversing the order in which the lottery is run will increase the probability of selection for H-1B advanced degree beneficiaries potentially by up to 16%.
WHO THIS IMPACTS
While the agency’s goal is to have the pre-registration process in place for the upcoming FY2020 H-1B cap season, the regulations provide the agency with the ability to suspend the pre-registration process in any given fiscal year (if, for example, the registration system became inoperable for any reason) and USCIS has noted that implementation of the registration system for FY2020 cases may indeed be suspended if there is insufficient time to complete all requisite user testing and vetting of the new H-1B registration system and process before it goes live. Therefore, it remains possible that the new system will not be in place for the upcoming H-1B filing window. Note however, that the proposed rule makes clear that even if the pre-registration process is suspended for FY2020, the agency would still switch the order in which it counts regular cap versus advanced degree petitions to maximize the number of advanced degree petitions accepted under the FY2020 cap.
WHAT YOU NEED TO KNOW
The proposed rule is currently undergoing a public comment period, after which the agency will review all public comments and make necessary updates and changes to the proposed rule before publishing a final version of the rule in the Federal Register.
D&S is continuing to monitor the situation closely and provide regular updates as more information becomes available. Because, at present, it is unclear whether the pre-registration process will be implemented for the FY2020 H-1B cap, D&S will continue to initiate and prepare H-1B cap cases in the normal course to ensure timely filing of cases. We advise clients to identify all potential candidates for H-1B sponsorship as soon as possible and we will adjust filing practices accordingly if and when the new rule is implemented.