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By Jennifer Hermansky, Associate, Klasko, Rulon, Stock & Seltzer, LLP
USCIS has published a notice of proposed rulemaking in the Federal Register that would establish an H-1B electronic pre-registration system for cap-subject employers. The purpose of the pre-registration system is to alleviate USCIS’ administrative burdens and to alleviate employer costs associated with preparing and filing H-1B petitions that are ultimately rejected if the H-1B annual cap is hit.
H-1B visas are subject to an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions for these visas filed on behalf of individuals with U.S. master’s degrees or higher are exempt from this cap. Cap-subject petitions seeking an October 1 start date (the first day of the fiscal year) can be filed up to 180 days in advance of the start date, or on April 1. In years when the H-1B visa demand is high, USCIS can receive more than 65,000 H-1B petitions on the very first day, April 1. For example, in FY 2009, USCIS received nearly 163,000 H-1B petitions between April 1 and April 7, 2008. In this situation, USCIS has administered a random lottery to select H-1B petitions that will be accepted towards the cap.
The new pre-registration program seeks to alleviate this problem so employers can simply pre-register for an H-1B number instead of incurring the costs of preparing and filing an H-1B petition that may be rejected through the lottery process. Under the new system, employers who are subject to the annual H-1B cap register electronically with USCIS for an H-1B number for a prospective foreign national employee. There is no cost for this registration. USCIS expects that this process would take about 30 minutes to complete.
The rule proposes that registrations must include basic information regarding the company and beneficiary: (1) the employer’s name, employer identification number (EIN), and employer’s mailing address; (2) the 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; and (4) any additional information requested by the registration or USCIS. Multiple beneficiaries cannot be listed on a single registration. At this time, it is unclear if attorneys could pre-register for an H-1B number on behalf of clients.
USCIS then will select a number of registrations that will exhaust all H-1B numbers for the year and notify the selected employers that an H-1B petition can be filed on behalf of the alien. USCIS proposes to establish a registration period that would begin no later than in the month of March each year, for a minimum period of two weeks. If USCIS does not receive close to 65,000 registrations by April 1, USCIS has the discretion to keep the registration period open so it can monitor the cap numbers. USCIS would notify the public of the respective start and end dates for the registration period via the USCIS Web site.
Employers would only file an H-1B cap-subject petition if selected by USCIS through the pre-registration process. Upon notification of selection by USCIS, a registrant would proceed to submit the LCA to the Department of Labor for certification and prepare the corresponding H-1B petition on behalf of the desired beneficiary. USCIS proposes that petitioners would have not less than 60 days from the date of notification of selection to properly file a completed H-1B petition for the named beneficiary. USCIS would state the applicable filing deadline in each selection notice. Under the proposed rule, USCIS may reject the petition if it is filed after the 60-day window. USCIS also would reject any H-1B petition filing that is not based on a selected registration.
The pre-registration program will not be available for FY2011. USCIS has stated that this electronic registration system will not go into effect until a final rule is published and becomes effective. If a final version of the rule is published by January 2012, USCIS could implement the proposed registration system for the fiscal year 2013 H-1B season, which opens in April 2012.
To comment on the proposed rule, members of the public can submit written comments by using any one of the following methods:
• Federal Rulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments.
• E-mail: email@example.com. Please include DHS Docket No. USCIS-2008-0014 in the subject line of the message.
• Mail: Chief, Regulatory Products Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW, Washington, DC 20529-2020. To ensure proper handling, please reference DHS Docket No. USCIS-2008-0014 on your correspondence. This mailing address may also be used for paper, disk, or CD-ROM submissions.
• Hand Delivery/Courier: U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW, Washington, DC 20529. Contact telephone number: 1-202-272-8377.
Related resource for lexis.com subscribers: Immigration Law and Procedure, Chapter 20 (Matthew Bender).
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