In early December, the Department of Homeland Security (DHS) published a proposed rule to implement a pre-filing registration system for U.S. employers seeking to file cap-subject H-1B petitions. The new system would require that employers electronically pre-register their intent to petition for an H-1B beneficiary during a two-week registration period. There would be no fee for pre-registration, but the employer would need to provide basic information about the employer, the intended position, and the beneficiary. If the application is selected for the H-1B lottery, the employer could then file an H-1B petition.
The second major change proposed by DHS is to reverse the order by which the agency selects H-1B petitions under the H-1B cap and the advanced-degree exemption. Currently, in years when the H-1B cap and the advanced-degree exemption are both reached within the first five days in which H-1B cap petitions may be filed, the advanced-degree exemption beneficiaries are selected before the H-1B cap beneficiaries. The proposed rule would reverse the selection order and count all applicants toward the number projected as needed to reach the regular H-1B cap first. Once a sufficient number of applicants have been selected for the H-1B cap, USCIS would then select applicants toward the advanced-degree exemption. USCIS projects that this change in the process would result in a 16 percent increase in the number of selected beneficiaries with a master’s degree or higher from a U.S. institution of higher education.
The proposed new system would cut down on the expensive and time-consuming work performed by employers and their immigration attorneys on cases that are ultimately not selected for the lottery. On the other hand, because of the relative ease by which an employer can register a potential H-1B worker, employers may be incentivized to register many positions that might not ultimately qualify for an H-1B, or that might be abandoned.
While the government would like to implement the rule in time for the upcoming H-1B filing season, the likelihood of that happening is slim, given the tight timeframe by which the agency must complete the regulatory process. Comments are due January 2, 2019.