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DHS Proposes Changes to Filing and Selection Processes for H-1B Cap Cases
Practical Law Legal Update w-017-8982 (Approx. 4 pages)
DHS Proposes Changes to Filing and Selection Processes for H-1B Cap Cases
by Practical Law Labor & Employment
| Published on 04 Dec 2018 • USA (National/Federal) |
The Department of Homeland Security (DHS) issued a Notice of Proposed Rulemaking (NPR) proposing changes to the filing and selection processes for H-1B cap cases.
On December 3, 2018, the Department of Homeland Security (DHS) issued a Notice of Proposed Rulemaking (NPR) proposing to amend several of its regulations governing the filing and selection processes for cap-subject H-1B petitions. Written public comments must be received by January 2, 2019.
The DHS's NPR particularly focuses on:
- Creating an H-1B registration program for cap-subject petitions.
- Altering the selection process if the DHS receives more H-1B registrations than there are available H-1B visas.
The DHS proposes a mandatory internet-based electronic registration process for filing cap-subject H-1B petitions for beneficiaries that may be counted under the regular cap or advanced degree exemption. For more on the H-1B cap, see Practice Note, The H-1B Nonimmigrant Visa Classification: The H-1B Cap.
This proposed electronic registration process would:
- Start at least 14 days before April 1, the date on which H-1B petitions generally can be filed for the new fiscal year (which begins October 1). The registration period would last at least 14 days.
- Not require a fee.
- Be mandatory and conducted through the USCIS website. An H-1B cap-subject petition would only be considered properly filed when it is based on a valid registration selected for that fiscal year.
Under the proposal, USCIS would announce on its website:
- At least 30 days beforehand, the initial registration period for the upcoming fiscal year.
- The final registration date in any fiscal year.
- Any subsequent reopening or reclosing of the registration period.
To prevent speculative or placeholder registrations, DHS would:
- Not allow petitioners to submit more than one registration for the same beneficiary during a fiscal year.
- Require petitioners to attest to their intent to file an H-1B petition for the beneficiary in the job for which the registration is filed.
DHS proposes that a petitioner could submit a registration:
- During the initial registration period only if the requested start date for the beneficiary is the first business day for the applicable fiscal year.
- For a validity date after the first day for the applicable fiscal year (as long as the registration date is no more than six months before the requested start date) if USCIS keeps the registration period open beyond the initial registration period, or re-opens the registration period.
In the event USCIS receives more registrations than there are available H-1B visas, DHS proposes changing the order in which registrations are counted towards the projected number needed to reach the H-1B allocations. Currently, USCIS counts petitions filed for beneficiaries with a master's degree or higher under the H-1B advanced degree exemption first until the projected number of petitions needed to meet the advanced degree exemption allocation (20,000) is reached, before beginning to select petitions filed for the regular cap (65,000). Under the proposed amendments:
- USCIS would first select the number of registration estimated to meet the regular H-1B cap from the entire pool of registrations.
- Once the regular cap projected number is reached, USCIS would then count registrations for petitions that are eligible for the advanced degree exemption but were not selected under the regular cap toward the projected number needed to reach the advanced degree exemption allocation.
- If selected, a petitioner will have a filing period of at least 60 days to prepare and file the petition.
- The proposal also allows for USCIS to temporarily suspend the H-1B registration filing process if USCIS encounters technical problems with the H-1B registration process or new electronic system.
Practical Implications
This proposed rule is intended to reduce the financial and human resources expended during typical H-1B cap filing seasons, particularly in response to recent years when the number of cases received by USCIS far outpaced the limited supply (see, for example, Practice Note, The H-1B Nonimmigrant Visa Classification: Impact of the Cap on H-1B Sponsorship. DHS's goal is to create a system to identify the pool of H-1B petitions that will satisfy the cap and exemption without overwhelming USCIS facilities with the actual petition packages. In addition, the DHS proposes a change in the selection process to maximize the number of cases selected for individuals with a US master's degree or higher.