LawFlash

USCIS Proposes Plan to Implement Preregistration for Cap-Subject H-1B Petitions

December 06, 2018

A registration program proposed by US Citizenship and Immigration Services would eliminate the need for paper filings prior to the lottery process for cap-subject H-1B petitions, and increase the chance of selection for petitions filed on behalf of beneficiaries with advanced degrees from US institutions of higher education.

US Citizenship and Immigration Services (USCIS) has proposed a rule that would institute a new internet-based preregistration system for petitioners seeking to file H-1B petitions subject to annual numerical limitations, or the cap. The proposed rule, published December 3, is intended to allow USCIS to more efficiently manage the intake and selection process for cap-subject H-1B petitions. Consistent with the direction of Executive Order 13788 (Buy American and Hire American) to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries,” the proposed rule would also increase the probability of petitions filed under the advanced degree exemption being selected by reversing the sequence for considering petitions filed under the H-1B regular cap or the H-1B advanced degree exemption. The proposed rule does not contain a mechanism to increase the probability of selection on the basis of compensation, however. USCIS may delay implementation of the registration system, if necessary, if the system and process are not fully operational in time for fiscal year 2020 petitions. All updates to the registration system will be announced on the USCIS website.

Notable Features of the Proposed Registration Program

  • USCIS will provide notice at least 30 days prior to the opening of the registration period, and the electronic registration process itself will begin at least 14 calendar days before the first business day of April, and last at least those 14 calendar days.
  • To register for filing in the online system, petitioners will submit a single online form for each prospective H-1B beneficiary they intend to hire.[1] Only one registration will be permitted per beneficiary per petitioner, and no substitution of beneficiaries will be allowed.
  • Once the registration period ends, if USCIS has received enough registrations to reach the cap, it will conduct a lottery among the registrations received.
  • Under the proposed amendments, USCIS will select from all registrations (regular and advanced degree exemption) until the regular cap is reached. Once the regular cap is reached, USCIS will then select registrations that are eligible for the advanced degree exemption until the advanced degree exemption is reached. Changing the order in which USCIS selects beneficiaries under these separate allocations will likely increase the overall chance of selection for beneficiaries who possess master's or higher degrees from US institutions of higher education.
  • The unselected registrations will be kept on reserve for the applicable fiscal year. If USCIS determines that it needs to increase the number of registrations projected to meet the allocation and select additional registrations, the agency will choose from those on reserve, or reopen the registration period if there are not enough registrations on reserve.
  • If insufficient registrations are received during the original registration period, USCIS will announce that all registrations on reserve will be selected and that the registration period remains open. When USCIS determines that it has finally reached the number of registrations to meet the cap, the agency will announce this on its website, and, if necessary, conduct a lottery among the additional registrations received during this added period.
  • USCIS is proposing to provide a petition filing period of at least 60 days to each selected registrant. USCIS will individually notify all petitioners with selected registrations that the petitioner is eligible to file an H-1B cap-subject petition on behalf of the named beneficiary within a designated filing period. This is meant to give USCIS the flexibility to stagger filings and minimize backlogs. USCIS anticipates that there will be several filing periods for each fiscal year.

Key Takeaways for US Employers and Businesses

  • The proposed rule will only affect those H-1B petitions subject to annual numerical limitations. Petitions filed on behalf of current H-1B workers or petitions filed by cap-exempt organizations (i.e., institutions of higher education or related or affiliated nonprofit entities, and nonprofit research organizations or governmental research organizations) will not be affected.
  • At this point, it is unknown if the system will be ready in time for fiscal year 2020 filings. Employers should plan to file as they have in previous years until USCIS confirms otherwise.
  • The registration program does not currently include any additional fees. If implemented properly, the proposed rule could therefore result in better resource management and predictability for both USCIS and petitioning H-1B employers, and could ultimately reduce the overall cost and time involved in petitioning for H-1B nonimmigrant workers.

Contacts

If you have any questions or would like more information on the issues discussed in this Immigration Alert, please contact any of the following Morgan Lewis lawyers:

Washington, DC
Eric S. Bord
Eleanor Pelta
Daniel D. Schaeffer

San Francisco
A. James Vázquez-Azpiri


[1] Petitioners will be asked to provide basic information when registering. This may include, but is not limited to, (1) the employer’s name, employer identification number (EIN), and mailing address; (2) the employer’s authorized representative’s name, job title, and contact information; (3) the beneficiary’s full name, date of birth, country of birth, country of citizenship, gender, and passport number; (4) whether the beneficiary has obtained a master’s or higher degree from a US institution of higher education; and (5) the employer’s attorney or accredited representative, if applicable.