USCIS Proposes Pre-Registration Requirement for Employers Filing H-1B Cap-Subject Petitions

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On December 3, 2018, the U.S. Citizenship and Immigrations Services, Department of Homeland Security, issued a proposed rule requiring employers planning to file H-1B cap-subject petitions for the fiscal year 2020 filing season, which begins on April 1, 2019, to pre-register on a short form first. According to the proposed rule, the pre-registration period could occur before the April 1 opening day of H-1B cap filing season. This short form, to include only basic information about the employer, the job opportunity and the foreign national, would then be run through the H-1B cap lottery system for standard and master’s cap cases until enough short forms are selected to meet the total 85,000 H-1B annual quota.

Under this proposed rule, there is no fee required for submitting the pre-registration short form. Full H-1B petitions, supporting documents and filing fees could only be submitted by employers after their short form is selected through the lottery process. The window for submission of full H-1B petitions eligible to be filed based on selection in the pre-registration lottery process will be very short, perhaps fourteen days under the proposed rule.

The proposed rule also includes the possibility of a waiting list being established so additional cases could be filed if the quota is not reached due to case rejections, withdrawals or if an employer decides not to file a petition that was selected in the lottery. Employers should be aware that the proposed rule includes changes to the lottery selection process aimed at increasing the overall number of foreign nationals with U.S. master’s degrees who would potentially be selected.

This change is intended to advance the Trump administration’s “Buy American, Hire American” policy and general policy of stricter enforcement of the H-1B rules steering the H-1B lottery process toward foreign nationals who are more highly paid and who hold advanced degrees from U.S. universities. It is still unknown whether the proposed rule will be finalized and in operation for start of the 2019 H-1B cap-subject case filing season which begins on April 1, 2019. Therefore, employers are advised to plan ahead and start preparing cases now under current rules.

To learn more about the H-1B Visa category see: https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2019-cap-season

To read the H-1B pre-registration proposed rule go to: https://www.federalregister.gov/documents/2018/12/03/2018-26106/registration-requirement-for-petitioners-seeking-to-file-h-1b-petitions-on-behalf-of-cap-subject