Update: Friday, November 30, the Department of Homeland Security (DHS) announced a notice of proposed rulemaking that proposed two main changes to the H-1B cap process: (1) it would require petitioners to electronically register H-1B cap-subject beneficiaries with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period; and (2) it would reverse the order of selection for H-1B cap beneficiaries with a master’s or higher degree from a U.S. institution of higher education. Note that the proposed rule contains a severability clause, so in the case that USCIS cannot feasibly roll out one aspect of the proposed changes, it may proceed in implementing the other. DHS reasons that the proposed rule will reduce costs to petitioners and to USCIS, as USCIS would no longer need to physically receive and handle hundreds of thousands of petitions before conducting the random selection process.
How it would work – Registration Process: The electronic registration period would begin at least 14 calendar days before the first day of filing in each fiscal year and will last for a minimum period of 14 calendar days. USCIS will give at least 30 days advance notice of this period on USCIS.gov. There is no fee for electronic registration.
The proposed information to be collected includes: (1) the employer’s name, employer identification number (EIN), and employer’s mailing address; (2) the employer’s authorized representative’s name, job title, and contact information (telephone number and email address); (3) the beneficiary’s full name, date of birth, country of birth, country of citizenship, gender, and passport number; (4) if the beneficiary has obtained a master’s or higher degree from a U.S. institution of higher education; (5) the employer’s attorney or accredited representative, if applicable (a Form G-28 should be also submitted electronically if this is applicable); and (6) any additional basic information requested by the registration system or USCIS. Employers must also include an attestation that they intend to employ the beneficiary if selected and approved, and that a bona fide job offer exists.
The proposed rule would also enable USCIS to temporarily suspend the registration process during any fiscal year in which USCIS experiences technical challenges with the H-1B registration process and/or the new electronic system, including the FY 2020 cap season.
How it would work – Selection Process: If USCIS receives more registrations than the projected number of petitions needed to reach the Regular Cap during the initial registration period, USCIS will conduct a random selection of these registrations. According to the proposed rule, “[t]he number needed to meet the cap would be determined by USCIS in advance of each fiscal year’s cap selection, and would be determined by projections taking into account historical approval, denial, revocation, rejection rates, and other relevant factors such as the percentage of registrants that ultimately decide not to file an H-1B petition.”
It is not clear exactly how many registrations will be selected during this initial period. After this initial selection is completed, USCIS will perform any necessary selection for the advanced degree exemption. Unselected registrations would remain on reserve in the system in the event that USCIS needs to selected additional registrations in order to meet the regular cap or advanced degree exemption. It is unclear what notice period, if any, petitioners will receive in the event that USCIS has to reopen the registration.
Expected Impact: The proposed rule also reverses the order USCIS has historically selected H-1B petitions in an effort to increase the number of beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected in the H-1B cap lottery. Changing the order in which USCIS selects beneficiaries is projected to increase the total number H-1B beneficiaries selected with advanced degrees by 16 percent.
EIG anticipates that if implemented, the proposed rule will result in an uptick in enforcement actions. We anticipate that USCIS will conduct data analysis on petitions, including, for example, measuring the number of filings per petitioner or the petitioner’s NAICS codes.
Implementation: USCIS has estimated that it will require 2,430 hours to complete the work necessary to implement the proposed registration changes. The likelihood that USCIS can finish the registration project prior to this year’s cap filing season is dubious.
Next Step: The proposed rule will be published in the Federal Register on Monday, December 3, at which time public comments may be submitted and must be received on or before January 2, 2019. Written comments should be submitted to Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, USCIS, Department of Homeland Security, 20 Massachusetts Avenue, NW, Washington, DC 20529, with reference to DHS Docket No. USCIS-2008-0014.