USCIS is moving forward with a plan to implement a preliminary registration system for cap-subject H-1B petitions that will drastically change the H-1B visa filing process employers have used for years. On September 3, U.S. Citizenship and Immigration Services (USCIS) posted a notice about its proposed rulemaking for its electronic H-1B implementation tool, which would require the payment of $10.00 via credit card using the pay.gov online portal to register H-1B cap or advanced degree exemption cases in the H-1B selection process. The fee is not refundable, if the registration is not selected or withdrawn.
The actual proposed rulemaking as to the electronic registration process is to be published on September 4, with two comment periods. The first comment period on the rule itself ends in 30 days from publication on October 4, 2019, while the second as to the Paperwork Reduction Act section in the rule ends 60 days post publication on November 3, 2019.
As to any implementation date for this fee or if it will apply to the H-1B selection process in 2020, WE DON’T KNOW, which makes advising clients particularly challenging. According to USCIS, it intends for the fee proposed to be in place before the H-1B registration process is initially implemented, “which may be as soon as the H-1B cap filing season for FY 2021.”
The American Immigration Lawyers Association (AILA) along with fourteen other entities/organizations such as the U.S. Chamber of Commerce, the Association of American Universities, the American Council on Education, and the Semiconductor Industry Association, submitted a letter to the Acting Director of USCIS, Kenneth Cuccinelli, on August 16 asking USCIS to:
- Confirm by September 15, 2019, if it will mandate the use of the new registration system for the FY 2021 H-1B cap season commencing on April 1, 2020.
- Solicit feedback from stakeholders before the new electronic registration system is implemented, since only limited outreach to stakeholders regarding the new system has been accomplished to date by USCIS.
The timing for response to this request was based on informal surveys conducted by AILA and the Society of Human Resource Management (SHRM) of members, who indicated that many attorneys are being retained as early as August and no later than January prior to the H-1B cap season for the preparation of petitions. USCIS estimates that using the electronic registration tool process would result in a net cost savings of $42.7 to $66.8 million as to H-1B filings by unselected petitioners, but this savings assumes that employers would not need to front costs related to the preparation of completed petitions. USCIS estimates that the cost to H-1B petitioners would range from $15.63 to $30.80 for the submission of the registration depending on the option used based on a theoretical preparation time of seven minutes, which leaves little time for the explanation, intake process, and review. Unfortunately, this implementation decision must be made soon by companies and their legal counsel to result in potential savings and proper planning.
What is the potential timeline for implementation?
- USCIS provides 30 days notice before registration opens. There is no requirement for a Labor Condition Application to be filed with the Department of Labor (DOL) at the registration phase of the process.
- The registration process will last a minimum of 14 calendar days and will start at least 14 calendar days before the earliest date an H-1B cap subject petition may be filed in the applicable fiscal year.
- If an insufficient number of H-1B cap subject petitions is received in the 14 (plus) day time frame, the registrants who have properly registered will be notified of selection. USCIS will also keep the registration period open until enough registrations are received to meet projections to reach the H-1B regular cap.
- If more registrations than are needed to meet the projected number necessary to reach the H-1B regular cap in the 14 (plus) day initial time frame are received, then a random lottery process will be used regarding registrations to meet the regular cap and cap exemption.
- An H-1B cap subject petition must be filed within the filing period stated on the selection notice for the beneficiary. No substitutions or transfers of beneficiaries are allowed. The filing period for the H-1B petition will be AT LEAST 90 days.
Note: A petitioner may only submit one registration per beneficiary in any fiscal year. If multiple petitions are submitted by the petitioner for one beneficiary, all registrations submitted by that petitioner regarding that beneficiary for the fiscal year will be invalid. If a draft registration is in progress when the registration period closes, USCIS will delete the data.
What information will be required in and mined from the H-1B registration process?
At present, it appears the information below will be required as part of the registration process. Attorneys and case management system vendors will be developing processes to simplify and streamline the intake and submission of this information, but note below that once registrations are submitted….the current cure is deletion and resubmission. In addition, USCIS is proposing to eliminate the ability of users to track a registration’s status via a USCIS account. In the Privacy Impact Assessment Update for the H-1B Registration Final Rule published by the Department of Homeland Security in January of 2019, it states that registrations suspected of misuse, abuse, or fraud will be sent to the Fraud Detection and National Security Directorate (FDNS) of USCIS for administrative purposes. In addition, information in the registration may be shared outside of USCIS for law enforcement, investigation, and litigation purposes or corrective actions.
- Legal name of petitioning company/organization or person, as applicable.
- Doing business as name, if applicable.
- Employer Identification Number (EIN) or if an individual, individual taxpayer number or social security number (SSN).
- Primary U.S. office address (include suite/apartment/unit/floor number).
- Current legal name of authorized individual for the petitioner to sign documents.
- Position of authorized individual for petitioner.
- Contact information (daytime phone number and email address) for authorized individual for petitioner.
- Attestation by authorized individual for petitioner that the company/organization intends to file an H-1B petition, if selected for the beneficiary, and the contents of the registration are true and accurate.
- Attorneys must certify under penalty of perjury that the registration was prepared based on the request of the petitioner and that the contents of the registration are complete, true, and correct. A G-28 form must be submitted for each petitioning client registering (once per lawyer-petitioner relationship annually). If the registration is selected for a beneficiary, then a G-28 is still required to be filed by attorneys for each subject I-129 petition filed.
Note: Once registrations are submitted, they cannot be edited. If there is an error, the registration may be deleted and submitted prior to the close of the registration period.
- Beneficiary’s current legal name.
- Beneficiary’s gender.
- Beneficiary’s date of birth.
- Beneficiary’s country of birth.
- Beneficiary’s country of citizenship.
- Does the beneficiary have a master’s or higher degree from a U.S. institution of higher education such that the beneficiary is eligible for the advanced degree exemption under INA §214(g)(5)(C), and are you requesting consideration under the advanced degree exemption?
- Beneficiary’s passport number.
- Are you registering for H-1B employment (if initial registration period) with a start date for the first day of the fiscal year?
- Are you registering for H-1B employment (if registration period remains open) not more than six months before the requested start date?
Earlier this year, the H-1B electronic registration requirement was not applied by USCIS to the H-1B lottery run in 2019 for FY 2020. Based on the timing of this proposed rulemaking and statements by USCIS in the supplementary information to the proposed rule, it will be important to plan for the implementation of the registration rule for FY 2021. Comments may be submitted electronically via the federal e-rulemaking portal at: http://www.regulations.gov or via mail to: Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW, Mailstop #2140, Washington, D.C. 20529-2140 referencing DHS Docket No. USCIS-2019-0006.
About the Author:
Kathleen Campbell Walker is a member of Dickinson Wright PLLC and serves as a co-chair of the Immigration Practice Group. She is a former national president and general counsel of the American Immigration Lawyers Association (AILA) and is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. She serves on the AILA Board of Governors. In 2014, she received the AILA Founder’s Award, which is awarded from time to time to the person or entity, who has had the most substantial impact on the field of immigration law or policy in the preceding period (established 1950). She has testified several times before Congress on matters of immigration policy and border security. She may be reached in our El Paso, TX office at 915-541-9360 and you may view Kathleen’s bio here.