USCIS Proposes H-1B Cap Registration System

At a glance

• A proposal to require employers to register online prior to submission of an H-1B cap filing is set to be published on December 3, the next step toward a potential change in the H-1B cap petition process. The proposal would also switch the order of the regular and master’s cap lotteries to maximize the number of U.S. advanced-degree holders selected.
• USCIS will accept public feedback on the proposal for 30 days from publication. 
• USCIS is aiming to have the new system finalized and in place for the FY 2020 cap filing season, but could defer the online registration requirement to a future year if it cannot be implemented in time.

The situation

U.S. Citizenship and Immigration Services (USCIS) has moved closer to implementing a plan to require employers to pre-register for the H-1B cap selection system and reverse the order of the regular and advanced-degree lotteries.  A proposed regulation is set to be published for public feedback on December 3.  Comments will be accepted for 30 days.

The agency has made an advance copy of the proposal available.

Online registration period

• To register for the lottery, employers would file a short online form that solicits basic data about the company and the prospective foreign employee (including whether he or she holds a qualifying advanced degree). The form could also seek information about the offered position and other data requested by USCIS.  The proposed form is expected to be made available for public comment in the near future.
• Employers would file a separate registration for each foreign beneficiary.  As under current rules, an employer would be prohibited from submitting more than one registration per foreign national – though registrations submitted by multiple related employers could be accepted if each registration represents a different bona fide job offer. 
• The registration period would occur at least 14 calendar days before the usual April 1 opening day of cap filing season and would last for at least 14 calendar days.  USCIS would give at least 30 calendar days’ notice of the registration period for a given fiscal year.​

Anti-fraud measures

• In their registrations, employers would be required to attest that they intend to file a petition for the named beneficiary in the position for which the registration was filed, among other attestations. 
• USCIS is expected to closely monitor data on registrations and filed petitions; employers could be subject to investigation for abuse of the registration system if USCIS discerns a pattern or practice of failing to submit petitions for registrations selected in the lottery.​

Cap selection lotteries and allocation of cap numbers 

• Though the H-1B cap will remain at 85,000, USCIS plans to change the order of the cap selection lotteries.  The agency would conduct the regular cap lottery first.  Any advanced-degree filing not selected in the regular lottery would be placed into a second lottery, with the goal of maximizing the number of advanced-degree graduates selected against the overall H-1B quota. Currently, the advanced-degree lottery is run first.
• USCIS had previously suggested it might seek other ways to give priority to advanced-degree graduates and those with high offered salaries in accordance with the Buy American, Hire American executive order, but has not done so in the new proposal.​

Petition filing period and waiting list

• Full H-1B petitions and supporting evidence would be filed only for registrations that were selected in the lottery.  Employers would not be permitted to substitute beneficiaries on winning registrations.
• If their cases are selected, employers would be notified and required to submit their cap petitions within a specific period, expected to be at least 60 days.  USCIS could have multiple filing periods and stagger them so that not all petitions are submitted within the same timeframe.
• USCIS would hold some unselected H-1B registrations in reserve so that additional cases could be filed if the quota is not reached due to petition rejections, denials or withdrawals, or if an employer does not file a petition for a winning registration.  ​USCIS could reopen registrations if more cases are needed to fulfill the annual quota.​

Impact of the proposal on FY 2020 cap filings

USCIS is working to implement the registration and lottery order proposals in time for the FY 2020 cap season, which is set to begin on April 1, 2019.  However, it is reserving the authority to defer registration to a future year if it cannot execute the online system in time for the upcoming season.

Once the proposed rule is published in the Federal Register, employers and other members of the public will have 30 days to submit comments.  USCIS must review and respond to those comments and obtain Office of Management and Budget approval of a final regulation before it can implement changes to the cap process. 

What employers should do now

Your organization should continue to work with your Fragomen team on H-1B cap preparation as usual. If the proposed system is implemented in time for the FY 2020 cap season, advance preparation will be necessary to assess each case’s eligibility before registrations are submitted.  But because it is not yet clear whether USCIS will impose online registration in time for the upcoming season, employers should plan for the possibility that they will need to submit a full H-1B cap petition and supporting evidence for each beneficiary as usual.

Fragomen is closely monitoring the H-1B cap registration proposal and will provide regular updates as it progresses through the regulatory process. If your organization would like to submit comments on the proposed regulation, please contact your designated Fragomen team or the firm’s Government Strategies and Compliance Group.

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