U.S. Citizenship and Immigration Services has published an advance copy of a proposed rule that will introduce reforms to the selection process for H-1B cap petitions. The proposed rule is scheduled to be published in the Federal Register on Monday, commencing a 30-day public comment period.

Key points:

Online preregistration system. The proposed rule would create a mandatory preregistration system requiring employers who intend to file H-1B cap petitions to submit an online registration for each intended beneficiary petition during a designated registration period before April 1. USCIS would then conduct a lottery and select enough registrations to meet the H-1B cap numbers. According to the proposal, petitioners could therefore wait until they know a petition has been selected before filing the Labor Condition Application and the full H-1B petition.

  • The registration period would begin at least two weeks before April 1 and would last at least two weeks. USCIS would announce the dates of the registration period at least 30 days in advance by posting on its website.
  • The registration would require information including the employer’s name, address and Employer Identification Number; the H-1B candidate’s name, date of birth, country of birth and citizenship, gender, passport number, and whether they hold an advanced degree from a U.S. institution; the employer’s representative, the employer’s attorney, and other information requested by the system.
  • Petitioners would be limited to one registration per individual for the same fiscal year. The government would also track how many registrations result in filed petitions and could investigate employers who show a pattern of filing registrations for numerous individuals without following up with petitions.
  • The initial registration period would be limited to H-1B candidates intending to start work Oct. 1.
  • USCIS is not proposing to charge a fee for the registration.

Selection process. The proposed rule would reverse the order in which H-1B cap petitions are selected for adjudication. Under the current process, USCIS first determines if there is a sufficient number of petitions to reach the 20,000 advanced-degree exemption and conducts a random lottery on that population first, then adds unselected petitions to the second pool and conducts a lottery for the regular cap of 65,000.

  • Under the proposed rule, USCIS would include all advanced degree holders in the lottery for the regular cap, which would be conducted first. USCIS would then conduct a second lottery if there are enough remaining advanced-degree holders to meet the advanced-degree exemption. All advanced-degree petitions would count toward the regular cap first, even in years when a lottery is not required, and are intended to increase the odds of selection for advanced-degree holders.
  • The rule proposes that petitioners whose petitions are selected will be notified that they are eligible to file an H-1B petition within a designated filing period. The duration of the period will be at least 60 days. USCIS may stagger filing periods to regulate processing.

Suspension clause. The proposed rule would allow USCIS to temporarily suspend the registration process during any fiscal year due to technical challenges with the registration process and/or the new online registration system.

BAL Analysis: The pre-publication version of the proposed rule contains changes to the H-1B lottery process that were included in the agency’s agenda in October. USCIS is working to implement the regulation and the necessary electronic registration system in time for the coming H-1B cap season, but acknowledged in the proposal that it may suspend the registration procedures. The proposed rule is expected to be published in the Federal Register on Monday. Employers and other immigration stakeholders are encouraged to submit public comments to the agency during the comment period that will open Dec. 3 and close Jan. 2.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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