H-1B Cap Registration Proposal Clears Federal Review

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At a glance

• A proposal to require employers to register online prior to submission of an H-1B cap filing has cleared Office of Management and Budget (OMB) review, the next step toward a potential change in the H-1B cap petition process.
• The proposed regulation is expected to be published for public feedback in the near future. 
• USCIS is aiming to have the new system in place for the FY 2020 cap filing season, which begins April 1, 2019.  The regulation can be implemented only after USCIS has considered public feedback, finalized the regulation and received final OMB approval.

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A closer look

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. The Office of Management and Budget (OMB) has approved a proposed regulation for publication in the Federal Register and public comment, which is the next step toward altering H-1B cap procedures. Though details of the draft plan remain confidential, features could include:

• Initial registration period:  To register for the lottery, employers would file a short online form that provides basic information about the company, the job offer and the prospective foreign employee.  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 different employers could be accepted if each registration represents a different bona fide job offer.  The pre-registration period would likely occur before the usual April 1 opening day of cap filing season.
• Cap selection lotteries and allocation of cap numbers:  It is anticipated that USCIS will seek to change the order of the cap lotteries so that the advanced-degree lottery is run before the regular cap lottery, with the goal of maximizing the number of advanced-degree graduates selected for the H-1B cap of 85,000. USCIS has also discussed revising the way cap numbers are allocated, so that those with advanced degrees or high salaries receive priority; however, it is not clear whether the forthcoming proposal will include such provisions.
• Petition filing period: Full H-1B petitions and supporting evidence would be filed only for registrations that were selected in the lottery.  If their cases are selected, employers would be required to submit their cap petitions within a specific timeframe, which could be brief.
• Waiting list:  USCIS may create a waiting list so additional cases could be filed if the quota is not reached due to petition rejections or withdrawals, or if an employer does not file a petition for a winning registration.  ​

Impact of the proposal on FY 2020 cap filings

USCIS Director L. Francis Cissna has said repeatedly that his agency is working to implement cap registration in time for the FY 2020 cap season, which is set to begin on April 1, 2019.  OMB’s preliminary approval of the proposal means that there could be enough time to meet that goal.  Once the proposed rule is published in the Federal Register, employers and other members of the public will have an opportunity to submit comments.  USCIS must review and respond to those comments and obtain OMB approval of a final regulation before it can implement a cap registration system.

What employers should do now

Your  organization and its Fragomen team should continue to work on H-1B cap preparation as usual. If the proposed system is implemented in time for the FY 2020 cap season, advance preparation will still be necessary to assess each case’s H-1B eligibility, wage requirements and other criteria in order to complete the registration process.  Also, the registration period and the period of time between lottery selection and the deadline to file full petitions may be short. Preparing now can help ensure that your organization is ready to timely register and submit H-1B petitions under a new system.

Fragomen is closely monitoring the H-1B cap registration proposal and will provide regular updates as it progresses through the regulatory process.

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