The Office of Management and Budget (OMB) has approved a proposed rule that would require employers to pre-register with U.S. Citizenship and Immigration Services (USCIS) before filing an H-1B cap petition. Details of the proposed rule are confidential and will not be disclosed until the proposed rule is published for public comment in the Federal Register. Pre-registration would not be implemented until an interim or final version of the regulation is approved by OMB and published. Though no implementation date has been specified, a pre-registration system could be in place in time for the Fiscal Year 2012 H-1B filing season, which begins April 1, 2011.The purpose of the proposed system is to streamline the sometimes chaotic H-1B cap filing process. If the system is implemented, USCIS will ask employers to register online and wait until they are awarded an H-1B cap number in the annual lottery before submitting a full petition with supporting documentation. The agency anticipates that it will eventually use a pre-registration system for other classifications that are subject to annual caps, like the H-2B.
The pre-registration system has been in the OMB approval process since September, when USCIS’s draft proposed rule was first sent for government review. In October, the agency also sought approval of a proposed online pre-registration form that employers would use to apply for an H-1B cap number.
More details from OH Law Firm
- Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Aliens Subject to Numerical Limitations: DHS is proposing to amend its regulations governing petitions filed on behalf of alien workers subject to annual numerical limitations. This rule proposes an electronic registration program for petitions subject to numerical limitations contained in the Immigration and Nationality Act (the Act). Initially, the program would be for the H-1B nonimmigrant classification; however, other nonimmigrant classifications will be added as needed. This action is necessary because the demand for H-1B specialty occupation workers by U.S. companies generally exceeds the numerical limitation. This rule is intended to allow USCIS to more efficiently manage the intake and lottery process for these H-1B petitions.
- Statement of Need: USCIS proposes to establish a mandatory Internet-based electronic registration process for U.S. employers seeking to file H-1B petitions for alien workers subject to either the 65,000 or 20,000 caps. This registration process would allow U.S. employers to electronically register for consideration of available H-1B cap numbers. The mandatory proposed registration process will alleviate administrative burdens on USCIS service centers and eliminate the need for U.S. employers to needlessly prepare and file H-1B petitions without any certainty that an H-1B cap number will ultimately be allocated to the beneficiary named on the petition. To ensure a fair and orderly distribution of H-1B cap numbers, USCIS evaluated its current random selection process, and has found that when it receives a significant number of H-1B petitions within the first few days of the H-1B filing period, it is extremely difficult to handle the volume of petitions received in advance of the H-1B random selection process. Further, the current petition process of preparing and mailing H-1B petitions, with the required filing fee, can be burdensome and costly for employers, if the petition is returned because the cap was reached and the petition was not selected in the random selection process. Accordingly, this rule proposes to implement a new process to allow U.S. employers to electronically register for consideration of available H-1B cap numbers without having to first prepare and submit the petition.
- Anticipated Costs and Benefits: USCIS estimates that this rule will result in a net benefit to society. Currently, employers submit a petition, at great expense, without any certainty that an H-1B cap number will ultimately be allocated to the beneficiary named on the petition. The new mandatory, Internet-based registration system allows employers to complete a much shorter and less expensive registration process for consideration of available H-1B cap numbers. The new system will also relieve a significant administrative burden and expense from USCIS. This rule will reduce costs for some employers and increase them for others. For employers that are not allocated a cap number and therefore do not ultimately file a petition, there will be a significant cost savings. Employers that are allocated a cap number and ultimately file a petition will experience the new and additional cost of filing the registration. Additionally, USCIS will incur additional costs to implement and maintain the registration system. USCIS has weighed the benefits and costs associated with this rule and determined that the benefits to society outweigh the costs.
- Risks: There is a risk that a petitioner will submit multiple petitions for the same H-1B beneficiary so that the U.S. employer will have a better chance of his or her petition being selected. Accordingly, should USCIS receive multiple petitions for the same H-1B beneficiary by the same petitioner, the system will only accept the first petition and reject the duplicate petitions
Stay tune to this website for more upcoming details.
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