DHS Proposes H-1B Cap Registration Fee

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At a glance

• Employers would be required to pay a $10 fee per case to enter the H-1B cap lottery under the forthcoming online registration system, under a proposed rule to be published Wednesday.
• According to DHS, the new online registration system could be in place as soon as the FY 2021 H-1B cap filing season, which begins April 2020, though it is not yet clear whether the system will be in place by that time.
• Public comments on the proposed fee rule will be accepted for 30 days from publication.

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The issue

As expected, the Department of Homeland Security (DHS) is proposing to impose a fee on employers who file H-1B cap registrations under the forthcoming online registration system. Employers would be required to pay a $10 fee per registration. The proposed rule will be published Wednesday, and public comments will be accepted for 30 days.

A closer look

Under the new H-1B cap registration system, employers seeking to file H-1B cap cases will first be required to register online in order to enter the H-1B lottery. Employers will then be permitted to file full H-1B petitions only for registrations that are selected in the H-1B lottery, which they can file with U.S. Citizenship and Immigration Services (USCIS) during a 90-day window.  A regulation announcing the new system was finalized in early 2019 but implementation was postponed so that the system could be developed and tested.

The $10 registration fee would be required for each H-1B cap registration at the time of submission. Fee payments are expected to be made through Pay.gov, the federal government’s online fee system.

According to DHS, the primary purpose of the fee is to offset the cost of the H-1B cap registration system, but it is also being imposed to reduce the filing of “frivolous” H-1B cap registrations. DHS confirms that it intends to monitor the registration system for employers who submit a large number of H-1B registrations, but file selected petitions at a significantly lower rate.

What’s next for H-1B cap registration

Once the proposed rule is published in the Federal Register, employers and other members of the public will have 30 days to submit comments. Separately, the agency plans to provide an additional 60 days for public comments on the proposed cap registration form. DHS must review and respond to these comments and obtain OMB approval of a final rule before it can be implemented.  

Because these key elements of H-1B cap registration are still being finalized, it is not yet clear whether the system will be ready in time for the FY 2021 cap season. In order for online registration to be implemented for the upcoming season, the new system would need to be fully tested and functional by early 2020.

A number of advocacy groups – including the U.S. Chamber of Commerce, AILA and CompeteAmerica – have called on DHS to confirm by September 15, 2019 whether it intends to implement the system early next year, as well as urge the agency to engage in beta testing and solicitation of additional stakeholder feedback before implementation. This could minimize technical problems and other disruptions during the very busy cap season.

What employers should do now

If your organization would like to submit comments on the proposed registration fee rule, please contact your designated Fragomen team or the firm’s Government Strategies and Compliance Group.

Fragomen is closely monitoring the development of the new online H-1B registration system and will provide regular updates.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.