****Update: After the comment period closed, on January 11, 2019 DHS submitted its final rule to OMB. This suggests that DHS still intends to move forward with implementing an electronic lottery system for the April 2019 filing window. We do not know whether any changes to the proposed rule were made in response to the public comments that were submitted.***
As expected, DHS is proposing to establish a mandatory Internet-based electronic registration process for petitioners seeking to file H-1B petitions for beneficiaries that may be counted under the regular cap or advanced degree exemption. DHS plans to implement this in time for April 2019 cap filing window. In its news release at https://www.uscis.gov/news/news-releases/dhs-proposes-merit-based-rule-more-effective-and-efficient-h-1b-visa-program, DHS tries to claim that this is a “Merit-Based Rule”, but the only aspect that deals with merit is the idea of reversing the order in which the lotteries are conducted, see more below. There is nothing in the rule related to higher-paid or higher-skilled workers being selected first.
The electronic registration process would start before April 1 and would begin at least fourteen calendar days before the first day of filing in each fiscal year. The registration period would last for a minimum period of fourteen calendar days. USCIS would give the public at least 30 days advance notice of the opening of the initial registration period for the upcoming fiscal year.
Petitioners would be asked to provide basic information regarding the petitioner and beneficiary when registering. This information may include, but is not limited to: (1) the employer’s name,
employer identification number (EIN), and employer’s mailing address; (2) the employer’s authorized representative’s name, job title, and contact information (telephone number and email
address); (3) the beneficiary’s full name, date of birth, country of birth, country of citizenship, gender, and passport number; (4) if the beneficiary has obtained a master’s or higher degree from
a U.S. institution of higher education; (5) the employer’s attorney or accredited representative, if applicable (a Form G-28 should be also submitted electronically if this is applicable); and (6) any
additional basic information requested by the registration system or USCIS. DHS is not proposing a separate fee for registration at this time.
The petitioner would also be required to attest, within the registration system, that the contents of each registration are true and accurate and that the petitioner intends to employ the beneficiary consistent with the registration. DHS recognizes that with the lowering of the burden and cost for participating in the H-1B cap selection process, there is a possibility that employers will utilize the registration system in a way to maximize their likelihood of being able to hire the best job candidates. To address potential issues of “flooding the system” with non-meritorious registrations, DHS is prohibiting petitioners from submitting more than one registration for the same beneficiary during the same fiscal year, and is requiring petitioners to make an attestation in the system indicating their intent to file an H-1B petition for the beneficiary in the position for which the registration is filed. This attestation is intended to ensure that each registration is connected with a bona fide job offer and, to the extent selected, will result in the filing of an H1B petition. DHS is particularly interested in preventing circumstances where petitioners submit large numbers of registrations but never follow up with the filing of H-1B petitions for the selected beneficiaries. USCIS intends to closely monitor whether selected registrations are resulting in the filing of H-1B petitions. If USCIS finds that petitioners are registering numerous beneficiaries but are not filing petitions for selected beneficiaries at a rate indicative of a pattern and practice of abuse of the registration system, USCIS would investigate those practices and could hold petitioners accountable for not complying with the attestations, consistent with its existing authority to prevent and deter fraud and abuse. USCIS may refer the matter to a law enforcement agency for further review and possible action.
However, given that the registration system is not intended to replace the petition system, DHS will not have a means for up-front determining whether a registration is meritorious until after it is selected and a petition resulting from such registration is properly filed. While DHS will be data mining the registration system and monitoring the filing rates of H-1B cap petitioners after the system is implemented, as well as employing its authority to investigate and sanction instances of fraud and abuse, DHS does not currently have a solution for the registration process, or any of its filing processes, that guarantees prevention of all non-meritorious registrations or filings prior to adjudication.
At the end of the initial registration period, if USCIS determines that it has received enough registrations in the initial registration period to reach the projected number of petitions to meet the regular cap, USCIS would conduct a random selection of all of the registrations received during the initial registration period. See proposed 8 CFR 214.2(h)(8)(iii)(A)(5)(ii). Under such process, USCIS would randomly select a number of registrations in the regular cap that USCIS projects would be sufficient to meet the cap.After USCIS has completed selecting registrations for the H-1B regular cap, USCIS would determine whether there is a sufficient number of remaining eligible registrations to meet the projected number of petitions to reach the H-1B advanced degree exemption numerical limitation.
Unselected registrations would remain on reserve for the applicable fiscal year. If USCIS determines that it needs to increase the number of registrations projected to meet the H-1B regular cap or advanced degree exemption allocation, and select additional registrations, USCIS would select from among the registrations that are on reserve a sufficient number to meet it or reopen the registration period if additional registrations are needed to meet the new projected amount.
Employers would not be permitted to substitute beneficiaries.
DHS proposes that petitioners would have a period of at least 60 days to properly file a completed H-1B cap-subject petition for the named beneficiary. USCIS would notify all petitioners with selected registrations that the petitioner is eligible to file an H-1B cap-subject petition on behalf of the named beneficiary within the designated filing period. Allowing USCIS to specify the filing period in the selection notice would give USCIS the flexibility to stagger filings, as described below, and provide filing periods of longer than 60 days if necessary to accommodate processing backlogs or other operational needs. A selected registrant who does not file a petition on behalf of the named beneficiary within the timeframe stated on the selection notice would forego
eligibility to file and any consideration for an available H-1B cap or advanced degree exemption number based on that selection notice.
DHS anticipates that there would be several filing periods for each fiscal year. For example some selected registrations may be provided a filing window between April 1 and May 31, while other selected registrations may be provided a filing window between May 1 and June 30. Separate filing windows would help USCIS manage the surge of cap-subject petitions received after it conducts the lottery.
As an alternative to the proposal to implement a registration process for cap-subject H-1B petitions, as well as to address circumstances in which it may be necessary to suspend the
registration process for H-1B cap-subject petitions, DHS proposes amending its regulations to allow for a change in how it counts a sufficient number of petitions needed to reach the regular
cap or advanced degree exemption under the existing petition-based process (i.e. reversing the selection order separate and apart from implementing a registration process). This approach
primarily is intended to address rare circumstances in which USCIS may experience technical challenges with the H-1B registration process and/or the new electronic system that would be
used to submit H-1B registrations, or where the system otherwise is inoperable for any reason. The approach would also allow USCIS to up-front delay the implementation of the H-1B
registration process past the FY 2020 cap season, if necessary to complete all requisite user testing and vetting of the new H-1B registration system and process and to otherwise ensure the
system and process are operable. Under this alternative, if USCIS suspends the registration process, USCIS would make an announcement on its website (http://www.uscis.gov) to inform
the public that the registration requirement for that fiscal year is being suspended, and provide the opening date of the applicable petition-filing period.
Public comments may be submitted starting Monday, December 3, when the proposed rule publishes in the Federal Register, and must be received on or before January 2, 2019.