As announced in Fall 2018 Regulatory Agenda, DHS and USCIS published the proposed new H1B petition pre-registration rule in Federal Register for public review and comments. It had an expected date of Oct 2018 for Notice of Proposed Rule Making (NPRM), but got delayed to December. Actual proposed rule document is 139 pages. We will cover the below aspects of new rule.
- Background of H1B pre-registration rule
- Summary of key changes with New H1B Pre-registration Rule
- H1B Electronic Pre-registration Process, Requirements, Fee
- Benefits of New System as per USCIS
- Common FAQs on the New H1B Pre-registration Rule
Background of H1B Pre-registration Rule :
This rule dates back to 2011, it had NPRM for public comments from March 3rd to May 2nd, 2011, and received about 60 comments from public, but it did not go past that proposed rule stage due to various reasons. You can check H1B Advance Registration 2011 Rule Details for more info. USCIS is reviving/superseding the original rule and has added more cost analysis, details in accordance with Trump Executive Order for implementing Buy American Hire American to stop H1B abuse. This rule is officially called as “Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens”. It appeared in Spring 2018 and Fall 2018 regulatory agenda and is published at RegInfo.gov Official Rule
Summary of the New USCIS Rule for H1B Petitions Pre-registration for Lottery :
- Changes to H1B Cap Petition Filings Process : In the past, employers planning for filing H1B petition under cap would directly send the complete H1B petition packet to USCIS and let them process under H1B lottery and then send reject notice. Now, under the new proposed rule, employers planning to file H1B petitions for next fiscal year are required to pre-register with USCIS electronically during a designated registration period. If USCIS receives more than required number of petitions for the cap, then they would conduct random selection aka H1B lottery for the registration received during that period. They would keep unselected registrations on reserve in system and use them if needed to meet the quota cap as needed. See below on the new and old process charts. Also, below is a short video explaining the same.
- Changes to H1B Visa Lottery Order : In the past for H1Ban Visa Lottery Process, first lottery was conducted for US Masters holders to meet 20,000 cap and then US Masters petitions not selected in that pool were added to regular quota pool and lottery was conducted for the entire pool to meet 65,000 cap quota. Now, with the new proposed rule, USCIS will reverse the order in which they will do the lottery
- New H1B Lottery Process – Order : With the new rule, first lottery is done from the entire pool of registrations to meet regular quota cap of 65,000 cap and then lottery is done only for US Masters or higher degree applicants to meet the 20,000 cap. They estimate that it will increase the chances of US Masters quota applicants by 16%, which is approximately 5,340 additional petitions selected for US Masters quota candidates. They claim it to be “more meritorious selection”, but to be very clear, nothing other than order and increase in percentage of probability for US masters candidates. See below on the new and old process in diagrams. Also, we have a short video, if you want to see explanation.
H1B Visa Petition Electronic Pre-Registration System Process :
Under the new proposed rule, below are various aspects like dates, information required, process, notifications.
Key Milestones/ Dates for Electronic Registration
- Electronic Registration would start at least 14 calendar days before the first day of H1B filing of the season, which is April 1st.
- The electronic pre-registration for H1B cap petitions would last for a minimum period of 14 calendar days.
- USCIS would notify public on their website at least 30 days in advance regarding the start date of electronic pre-registration for H1B petitions. Also, they would announce if they plan to re-open registration period.
- Employers / Sponsors are not required to file H1B LCA with DOL for the electronic pre-registration for the beneficiary. They can do it after the beneficiary is selected in the electronic registration period.
Information Required in H1B Electronic Pre-registration
- Employers/ H1B petitioners are required to provide below information in their electronic registration
- Employer / Sponsor Info : Employer’s Name, Employer Identification Number, Mailing Address, Authorized representative’s name, title, contact info like phone, email.
- Beneficiary / Applicant’ General Info : Full name, Gender, Passport number, Date of Birth, Country of Citizenship and Country of Birth.
- Beneficiary / Applicant’ US Education Info : Info regarding applicant’s US Master’s or higher education.
- Immigration Attorney info : Details of accredited representative and as needed form G-28.
- Additional Info : Also, any additional information as required by the new electronic system.
- Attestation : H1B Sponsors / Petitioners are required to attest in the pre-registration system that all the contents of registrations are true and accurate and they plan to employ the beneficiary as submitted in registration.
Duplicate Filings – New Electronic Pre-Registration of H1Bs :
USCIS similar to current system says that in the new rule that it is prohibiting employers from submitting more than one registration for the same beneficiary/ applicant. Employers needs to attest in the system regarding their intent. USCIS indicates that will monitor selected registrations and H1B petitions filed for those selected closely and if they find out that fraud is involved with multiple registrations, they would hold such petitioners accountable for not complying with attestations.
Fee for New Electronic Pre-Registration of H1Bs :
USCIS does not plan to charge any separate additional fee for the new H1B visa electronic pre-registration system. Regular current H1B visa petition filing fee will apply for all the selected registrations during the filing process.
Duration to File H1B petition after selected in electronic registration :
USCIS will give at least 60 days for employers to properly file H1B petition, if their registration was selected by USCIS. They will notify the employer with the details of beneficiary selected and by when they need to file the H1B petition. If filed before or after the given filing period, such petitions would be rejected/denied. Also, there may be multiple filing windows for employers as USCIS plans to manage the load of processing.
Notifications of Electronic Registrations :
Each employer/ sponsor would receive automatic electronic notifications regarding their registration with USCIS and have a unique identifying number that USCIS would use for tracking purposes. Employers cannot modify the registration request once received by USCIS.
Benefits of New H1B Electronic Registration System as per USCIS, Other Provisions :
- Reduction in Overall Costs for Petitioners, Faster Notifications : Majority of the 139 pages of the proposed rule are around cost calculations and savings. USCIS claims that the new H1B lottery pre-registration system would reduce the overall cost for petitioners and most cost effective process for USCIS as well, including the administrative burden for USCIS to handle physical packages of thousands of petitions. They estimate that petitioners/ sponsors and USCIS would save anywhere from $42.4 million to $66.5 million USD per annum with this new rule. Also, they say that this new rule will reduce the wait times for cap selection notifications.
- Integrity of the System : USCIS claims that the new system will increase the integrity of the system saying that filing of cap subject petition is restricted to the name that was in the original pre-registration that was selected.
- Alternatives Considered by USCIS : 1. First in first out – unfair advantage for companies with more resources. 2. Status quo – more cost and burden to everyone.
- USCIS Provision to Temporarily Suspend Registration Process : USCIS has added a provision to suspend the registration process during any fiscal year as per their convenience to deal with new technical system. Also, they say that this provision would also allow USCIS to delay/ suspend the implementation for H1B Visa 2020 cap season, if the process is not complete on time to test and implement.
Public Comments (NPRM) Dates : Public can submit comments on the new proposed rule starting from Monday, December 3rd, 2019 until Jan 2nd, 2019. You can submit your comments during these dates at Regulations.Gov H1B Rule
Common FAQs on the New H1B Petitions Pre-registration Rule :
Does this New H1B Pre-registration rule apply for H1B 2020 Season ? Will everything be ready for FY 2020 Season ?
Well, as of now, it is not confirmed. It may or may not happen for the upcoming H1B season. USCIS says, if the proposed rule becomes final rule and they get enough time to implement the new system, they would like to have it for FY 2020 season. But, they also have clause saying that they have provision to suspend it, if they cannot implement the new system or if they have any issues with the new electronic system. Knowing the pace of USCIS, it can be very tight as they need to review all the comments submitted by users and then change or modify the rule as needed and then publish the final rule. We need to wait and see on the number of comments that USCIS gets to be able to tell their burden to review and publish changes.
Does the new rule has any Higher Paid or High Salary Requirements like $100K per year ?
There are no requirements published in the proposed rule regarding any salary requirements for pre-registration of H1B petitions.
Are there any Higher Skills/Degree requirements in the new rule for H1B Petitions Registration ?
No, there are no such requirements in new rule to have higher skills or higher education degree to file H1B petitions. Only the order of H1B petition lottery has changed.
Does this new rule create any priority date kind of queues for Green Card ?
No, there is nothing planned as such.
Are there any country specific limits for H1Bs in the new rule ?
No, there are not such restrictions.
Overall, it looks to have some benefits to the employers, USCIS and US Masters students. It is too early to say, if this will prevent fraud and increase the integrity of the H1B program. We will continue to update this article with more info as we analyse more info.
What are your thoughts on the new rule ? Is it good for H1B seeking employees ?
References : Official H1B Registration Rule in Federal Register