Proposal Overview
On December 3rd, USCIS published a proposal to regulate a new registration system for H-1B, in which employers must pre-register for the cap selection system online and the order of the advance-degree and regular lotteries will be swapped. Public feedback on the proposal will be accepted for 30 days starting from the proposal being published.
FY 2020 Cap Filings
USCIS is aiming to have new system in place for FY 2020 cap season beginning in April 1, 2019.
If online system cannot be implemented in time, USCIS will defer registration to future cap seasons instead.
USCIS must respond to public feedback and have OMB approval before changes can be officially implemented.
Pre-Registration
Employers must fill out an online pre-registration form with information about the company and prospective employee, including the employee’s education level. It might ask additional information as USCIS deems important such as the job position.
The proposed form will likely be on display for public review before USCIS puts it into action.
Employers must file individual registrations for each potential H1B employee, not to exceed one registration per employee, though each employee can have multiple registrations from different employers as long as each job offer is legitimate.
The time period for registration will be 2 weeks, or 14 days, before the April 1st cap filing season opening day. It will last for that duration of 14 days at a minimum. USCIS will announce the registration period at least 30 calendar days prior for given fiscal year.
Main petition filing
Employers will file full petitions and evidence only if their registration was chosen in the lottery.
Beneficiaries cannot be substituted in winning registrations to prevent abuse of the pre-registration system.
Once the registration is selected, the cap petition for that registration must be submitted within a set time period, likely at least 60 days. Employers will be notified upon selection.
The system might use multiple filing periods in order to stagger petition submission time frames.
USCIS will have a wait-list, holding some registrations not selected in the lottery in case the quota is not filled due to rejected, denied, withdrawn, or unfiled petitions.
Registration might be re-opened if quota is not met.
Fraud Detection
Employers must submit a number of attestations, such as attesting to an intention to file a full petition for the registered beneficiary.
USCIS will monitor data on all registrations and petitions to find patterns of failing to submit petitions for selected registrations.
Employers suspected of abusing the system by over-registering will be subject to investigation.
Cap Selection
The H1B cap amount will not change with the new proposal, remaining at 85,000.
Instead of 20,000 cap advanced-degree lottery being run first, it will now be run after the regular cap lottery so that any advanced-degree filings not chosen can have a second chance at selection.
The change was made so that more advanced-degree graduates can be chosen for H-1B.
What This Means For Employers
Employers should continue working on preparing petitions for the H-1B cap for now.
If system is put into effect for FY 2020, employers will need to work with attorneys to prepare for pre-registration and the new eligibility requirements.
There is no guarantee the system will be ready for FY 2020. Employers should be ready to submit full petitions as they have in the past.
We will continue to bring news about further changes to the H-1B process so that we can notify you of any new developments and keep you up to speed. Contact Sunwise Law today with your immigration questions and concerns.