USCIS Plans a Pre-Registration System for H-1B Cap Filings

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At a Glance

• A proposal to require H-1B employers to register online prior to submission of an H-1B filing is now under review at the Office of Management and Budget – the first step toward a possible change in the H-1B cap petition process.
• The proposal seeks to streamline the H-1B petition process by requiring a full petition to be submitted only after a case is selected in the H-1B cap lottery.
• Though USCIS is aiming to have the new system in place for the FY 2020 cap filing season, which begins April 1, 2019, it is not yet known whether the proposal can clear federal review in time.

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A closer look

U.S. Citizenship and Immigration Services (USCIS) is moving forward with a plan to require employers to pre-register for the H-1B cap selection system.  The agency could also propose other changes to the H-1B cap petition process.  USCIS has sent a draft regulation to the Office of Management and Budget (OMB) for review, which is the first step toward altering H-1B cap procedures.

Though details of the draft plan are confidential for now, USCIS made a similar proposal in 2011, which could be a model for the agency’s forthcoming regulation.  Features of the 2011 proposal included:

• Initial pre-registration period:  To register for the lottery, employers would file a short 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 could occur before the usual April 1 opening day of cap filing season.
• Cap selection lotteries.  It is anticipated that USCIS would retain the cap lottery system and use the lottery to select H-1B petitions eligible for filing. Once the pre-registration period closed, USCIS would run the standard and master’s cap selection lotteries and choose enough registrations to meet the 85,000 H-1B quota.  The agency could propose some changes to the way cases are selected in the lotteries and the way cases are counted against the annual quota.
• 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 could 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 decides not to file a petition for a winning registration.  

Impact of the proposal on FY 2020 cap filings

USCIS Director L. Francis Cissna has said that he hopes a pre-registration can be implemented in time for the FY 2020 cap season, which is set to begin on April 1, 2019.  However, it is not clear that USCIS will be able to complete the regulatory approval process in time.  The regulation can be implemented only after it is approved and finalized – a process that typically takes several months.

Once OMB completes its initial review and 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 those comments and obtain approval of a final regulation before it can implement pre-registration.

What employers should do now

Because it is not yet clear that pre-registration will be in place for the FY 2020 cap filing season,  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, advance preparation can ensure that your organization is ready to register and submit H-1B petitions during what could be a short filing period.

Fragomen is closely monitoring the H-1B cap pre-registration proposal and will provide regular updates. 

This alert is for informational purposes only. If you have any questions, please contact your designated Fragomen professional.