For many years, on the first business day of April, 200,000 or more H-1B cap petitions were filed with U.S. Citizenship and Immigration Services for approximately 85,000 available spots. H-1B petitions for individuals with bachelor’s-level degrees were capped at approximately 65,000 (Regular Cap), and petitions for individuals with U.S. advanced degrees were capped at 20,000 (Advanced Degree Cap).

Because the number of petitions filed exceeded the caps, about 60 percent were not selected, disappointing the petitioners and imposing burdens on the USCIS, which had to handle this overload of filings.

On Monday, the USCIS proposed to change the rules regarding how H-1B cap petitions are filed and selected. In general, the agency proposes to institute a pre-filing electronic registration requirement during a designated period. An employer would not be able to file an H-1B cap petition unless it registered and the registration was selected by the USCIS. Although the agency does not propose making changes to the criteria for lottery selection, it does propose to change the method of selection with the goal of selecting more Advanced Degree professionals. This change would further the provision in President Trump’s Buy American and Hire American Executive Order that directed the Department of Homeland Security (the umbrella organization to the USCIS) and other agencies to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”
There is a short comment period – comments are due on January 2, 2019 – suggesting that the USCIS would like to implement this new system for this year’s H-1B cap filings.  If not, the current system, without pre-registration, will apply for the upcoming Fiscal Year 2020 cap filings.

The highlights of the proposed rule are as follows:
  • The electronic registration would have to be filed during the registration period designated by the USCIS. The registration would include information about the prospective H-1B beneficiary and employer. The initial registration period is yet to be announced, but it would last a minimum of 14 days and would start at least 14 days before the first business day in April, when H-1B cap petitions can first be filed.
  • A cap petition could be filed only if the registered proposed beneficiary was selected. The employer would have at least 60 days after selection to file the cap petition. The agency may stagger the filing period to lessen the burden on the Service Centers.
  • A separate registration would have to be filed for each prospective H-1B beneficiary. Only one registration would be allowed per beneficiary, per employer. Substitutions for the named beneficiary would not be allowed.
  • Because no substitutions would be allowed, employers would have to choose prospective beneficiaries carefully. Although there would be an obvious temptation to file a registration for any person who might be hired and for whom a cap petition could be filed, the USCIS discourages excessive and unsubstantiated filings. The preamble to the proposed rule states that the DHS “is particularly interested in preventing circumstances where petitioners submit large numbers of registrations but never follow up with the filing of H-1B petitions for the selected beneficiaries...”  The preamble states that this situation is unfair to other petitioners whose registrations are not selected and will be monitored. Further, petitioners who abuse the system could be referred to “a law enforcement agency for further review and possible action.” Because of this DHS monitoring, and assuming the proposed rule becomes final, employers probably should take a cautious approach and file registrations only where there is a reasonable basis for believing that a petition would be filed. The safest course would be to have an accepted offer of employment from the prospective beneficiary; however, something less than that may be sufficient depending on the final regulations.
  • If too few registrations are received, the registration process would be kept open. If too many are received, a lottery (similar to what is currently used) would be followed.
  • The USCIS intends to alter the method of selection to give Advanced Degree professionals a better chance of selection. Under the current lottery system, the Advanced Degree professionals are selected first for the 20,000 cap. Petitions not selected are made part of the Regular Cap pool. Under the proposed rule, the Regular Cap lottery would be held on behalf of all prospective beneficiaries first, including Advanced Degree professionals. That would allow Advanced Degree professionals a chance for selection under the approximately 65,000 Regular Cap. Advanced Degree professionals who were not selected would then be eligible for the 20,000 Advanced Degree Cap.
  • Unselected registrations would be kept on reserve for the remainder of the applicable fiscal year. These registrations may be selected if the USCIS determines that additional registrations are needed. Also, the registration period may be reopened and a further lottery conducted where required.
We will continue to monitor the proposed rule and developments and will provide an update when the final rule is issued.

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