Today, the U.S. Citizenship and Immigration Services (USCIS) announced a proposal to amend its regulations to require companies filing H-1B petitions to pre-register each new cap-subject H-1B case prior to filing. The proposed rule will be printed in the Federal Register tomorrow, March 3, 2011, and will be open for comments for 60 days.
Under this new rule, USCIS would create an internet-based electronic registration process for U.S. employers that anticipate filing H-1B petitions subject to the annual limitation of 65,000 under the regular H-1B cap or 20,000 under the advanced U.S. degree cap. Employers would go into the electronic registration system and provide information about the company and specific employee to be sponsored. A separate registration is required for each beneficiary. In part, this is to avoid certain petitioners from monopolizing large numbers of H-1Bs for unknown potential beneficiaries in the future. In other words, employers would need to name a specific individual for which H-1B sponsorship will be sought. The registration acceptance would need to be paired with the H-1B petition, which avoids substitution of one beneficiary for another.
The thrust of the new proposal is to save time, money and other resources in years where the annual H-1B cap numbers are exhausted within the first few days. For example, the FY2009 H-1B cap, which opened up on April 1, 2008, saw 133,000 H-1B petitions filed within the first few days under the regular cap of 65,000. These cases were put into a random lottery and those not selected were rejected and returned. According to USCIS, this created a significant burden to manage the additional filings and return them to petitioners. In a year where demand is significantly higher than availability, such as with the FY2009 H-1B cap, the pre-registration rule would essentially streamline the selection process by managing it electronically before any case is filed. While all cases properly registered will receive a notice of acceptance, an H-1B case would only be filed upon receipt of a notice of selection. Each notice will have a unique identifying number for tracking purposes.
As far as the specific process goes, USCIS anticipates opening registration a minimum of two weeks prior to the start of the H-1B filing season. If the number of registrations is not sufficient to meet the annual H-1B cap allotment, the registration period will remain open until the cap is exhausted and all cases received during the initial registration period will be accepted. Once USCIS believes sufficient H-1B cases have been received, it will announce the closing of registration and conduct a random selection of all registrations received on the last day of the registration period.
When an employer receives a notice of selection, it will have 60 days from that time to file the corresponding H-1B petition. Petitions filed after the 60-day filing period would be rejected. Again, USCIS will not permit the substitution of beneficiaries.
This rule would create a number of significant differences in internal processing. We will monitor the progress of this proposed rule and will send out another news alert and communications to our clients once the final rule has been confirmed. We will work with clients to ensure compliance with the final rule. Please contact Graham Adair with questions about how this proposed rule might affect annual H-1B cap processing.