As immigrationgirl.com readers know, DHS previously proposed to establish a mandatory Internet-based electronic registration process for petitioners seeking to file H-1B petitions for cap-subject beneficiaries. The Final Rule is available for public inspection today and will take effect 60 days from the date it is published in the Federal Register.
DHS had initially planned to implement this in time for the April 2019 cap filing window, however the final regulation indicates that they will not implement electronic registration for this year’s lottery. USCIS will be suspending the registration requirement for the FY 2020 cap season (beginning April 1, 2019) to complete all requisite user testing of the new H-1B registration system and otherwise ensure the system and process are operable. As the testing continues, USCIS is exploring a number of options for efficient operation, use, and maintenance of the system.
DHS is proceeding with reversing the order of the lottery starting April 2019. DHS believes that this final rule is merit-based in that it will likely increase the number of beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected for further processing under the H-1B allocations.
Starting in 2020, under the final rule the electronic registration process would start before April 1 and would be open for at least 14 days. USCIS will give the public at least 30 days advance notice of the opening of the initial registration period for the upcoming fiscal year. In response to public comments stating that 60 days is an insufficient amount of time for a company to gather all the necessary documentation to properly file the petition, DHS is revising the filing period to be at least 90 days. Petitioners would be notified in the electronic system whether the beneficiary was selected. They will print that notification and will have 90 days to file the petition, beginning on April 1st. DHS chose not to proceed with a staggered filing window. USCIS will not be separately notifying the beneficiary and DHS does not believe that it is necessary to do so given that the petitioner is the affected party in the administrative proceeding.
USCIS is exploring a number of options for efficient operation, use, and maintenance of the system. USCIS will not require petitioners to enter their corporate information for every beneficiary. This final rule requires that each registration include, in addition to other basic information, the beneficiary’s full name, date of birth, country of birth, country of citizenship, gender, and passport number. USCIS intends to check the system for duplicate registrations during the registration phase similarly to how USCIS currently checks for duplicate H-1B petition filings. At this time DHS does not believe that requesting additional information about the beneficiary or the petitioner is necessary to effectively administer the registration system. Some of the additional information proposed by commenters is information that USCIS would require and review to determine eligibility in the adjudication of the H-1B petition. According to DHS, establishing eligibility is not a requirement for submitting a registration. USCIS believes the current required information is sufficient to identify the registrant and limit potential fraud and abuse of the registration system. DHS is not amending the regulations to prohibit multiple employers from filing an H-1B cap-petition for the same beneficiary. However, keep in mind that absent a legitimate business need to file multiple cap-subject petitions for the same beneficiary, USCIS will deny or revoke the approval of all H-1B cap-subject petitions filed by “related entities” for that beneficiary. http://immigrationgirl.com/new-memo-reiterates-uscis-policy-on-filing-an-h-1b-in-the-lottery-with-more-than-one-employer-to-increase-your-chances/
DHS feels thisfinal rule authorizes USCIS to collect sufficient information for each registration to mitigate the risk that the registration system will be flooded with frivolous registrations. For example, each registration will require completion of an attestation, and individuals or entities who falsely attest to the bona fides of the registration and submitted frivolous registrations may be referred to appropriate federal law enforcement agencies for investigation and further action as appropriate. To address potential issues of “flooding the system” with non-meritorious registrations, the final rule prohibits a petitioner from submitting more than one registration for the same beneficiary during the same fiscal year, prohibits the substitution of beneficiaries, and requires each registrant 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 submitted. 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 H-1B petition.
Once the registration system is implemented, it is possible that DHS may receive more registrations than it would have received petitions for the cap filing season; however, this is not a certainty and DHS does not anticipate a significant increase in overall petitions due to the registration requirement. 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.
Given that the registration system is not intended to replace the petition system, DHS will not make any determination whether a registration is meritorious until after it is selected and a petition resulting from such registration is properly filed.
USCIS is considering ways to allow petitioners to correct typographical errors, and may allow petitioners to contact USCIS where they believe such an error was made on a registration. USCIS will allow petitioners to edit a registration up until the petitioner submits the registration. A petitioner may delete a registration and resubmit it prior to the close of the registration period. USCIS will provide guidance on how to use the registration system and edit registrations prior to opening the registration system for the initial registration period. The regulation will allow attorneys to submit registrations on behalf of petitioning clients, upon completion of a Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, for each petitioning client.
DHS recognizes that some employers may be more willing to submit a registration, once the registration process is implemented, than they are willing to submit a complete H-1B cap-petition with filing fees. DHS has taken steps, however, as described in more detail above, to prevent speculative or frivolous registrations. However, because 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. DHS recognizes that some registrations will not lead to approved H-1B cap-petitions, and will therefore hold unselected registrations in reserve and will conduct additional selections if necessary.
Regarding the suggestion that current regulations be amended to allow for cap gap relief beyond October 1 due to lengthy adjudications, USCIS believes the new registration process and 90-day filing window will afford USCIS the ability to adjudicate the cap-subject H-1B petitions more efficiently. DHS believes, however, that comments related to cap-gap relief generally, such as suggestions to revise the cap-gap provisions to allow for cap-gap relief beyond October 1 and to the date of adjudication are outside the scope of this rulemaking. Future rulemakings are under consideration, including possible changes to the cap-gap relief regulations.
Advanced Copy of the final regulation is available at https://s3.amazonaws.com/public-inspection.federalregister.gov/2019-00302.pdf