DHS Proposed H-1B Registration System

On Friday, November 30, 2018, the U.S. Department of Homeland Security (DHS) announced a notice of proposed rulemaking to amend the regulations which govern how H-1B visas are filed and selected. The H-1B visa represents one of the most popular U.S. visa options for U.S. employers to hire top international talent. To qualify, a U.S. employer must intend to hire a foreign Beneficiary in a position which requires, at minimum, a Bachelor’s degree in a specialized field. In addition, the foreign Beneficiary must hold at least a Bachelor’s degree or its equivalent in the specialized field, or a related specialized field. On an annual basis, the U.S. Citizenship and Immigration Services (USCIS), operating under DHS, allots up to 85,000 visa slots for the H-1B classification, 20,000 of which are reserved for foreign Beneficiaries with advanced degrees from U.S. colleges or universities (Master’s or higher, known as “Master’s Cap”). To accommodate all H-1B petitions received, which usually exceeds the 85,000 slots available, USCIS conducts a random lottery after receiving all petitions and prior to adjudicating. This lottery process first selects among all Master’s Cap petitions to reach the 20,000-slot limit, and then selects 65,000 (Regular Cap) petitions from the remaining.

DHS now proposes to implement a mandatory electronic registration system which will require all employers to first electronically register each petition with USCIS before actually submitting the petition. DHS proposes to establish a registration period of at least 14 calendar days, starting at least 14 calendar days before the first day of filing in each fiscal year (first business day in April). The electronic registration will capture information relevant to the employer, the foreign Beneficiary, the qualifications of the foreign Beneficiary, and an electronically-submitted form G-28 if an attorney is representing the employer. DHS will also prohibit employers from submitting more than one registration for the same beneficiary during the same fiscal year.

After receiving all registrations, USCIS will then prioritize the registration of advanced-degreed foreign Beneficiaries by randomly selecting registrations for Regular Cap (up to 65,000 registrations) first, including advanced-degreed registrations, and then selecting the Master’s Cap registrations. According to DHS, this proposed change in the order of selecting petitions will result in an estimated 16% increase (or, 5340 workers) of foreign Beneficiary workers who hold a U.S. Master’s degree or higher. In the event that DHS’ proposed registration system is not implemented in time for the upcoming H-1B cap season (FY 2020), DHS proposes to still randomly selected H-1B petitions in this revised order.    

If selected, DHS proposes to notify the employer that they are eligible to file an H-1B cap-subject petition on behalf of the named foreign Beneficiary within a specified filing period and to an indicated filing location. At minimum, employers will have a period of at least 60 days to properly file a completed H-1B cap-subject petition. 

DHS’s will publish the proposed rule on Monday December 3, 2018 and will allow for public comment up until Wednesday January 2, 2019. The information provided is not intended as legal advice. This article contains general information only and is intended for informational purposes only. If you have a question about your situation please contact an attorney directly. 

About MT Law LLC:  We are an experienced, client focused immigration law firm with offices in Massachusetts, New York, and California. You can learn more about our legal practice and our talented attorneys by visiting http://www.mtlawllc.com or by contacting us at 800-345-1899 or info@mtlawllc.com.