Proposed Pre-Registration Rule for H-1B Cap-Subject Petitions

On October 17, 2018, the US Department of Homeland Security (“DHS”) released its Unified Agenda of Regulatory and Deregulatory Actions and Regulatory Plan which gives the public an overview of anticipated federal regulatory activity and indicates expected timelines but these timelines are not strictly adhered to. One proposed rule will establish a pre-registration requirement for H-1B professional worker petitions who wish to sponsor cap-subject employees. For a full discussion of the H-1B visa “lottery” and which petitions are subject to the annual H-1B cap, please see my earlier posting explaining the history of the H-1B “lottery”.

The DHS indicates the following in relation to this proposed rule:

“The proposed rule may establish an electronic registration program for petitions subject to the annual H-1B cap. This action is being considered because the demand for H-1B professional workers by U.S. employers has often exceeded the numerical limitation. This rule is intended to allow U.S. Citizenship and Immigration Services (USCIS) to more efficiently manage the intake and selection process for these H-1B petitions. The Department published a proposed rule on this topic in 2011. The Department intends to publish an additional proposed rule in 2018. The proposal may include a modified selection process, as outlined in section 5(b) of Executive Order 13788, Buy American and Hire American.”

We do not yet have the text of the new rule but it is expected that the rule will be similar to the 2011 proposed rule on this subject which the Obama administration brought in: USCIS 2 Mar 2011 Press Release Proposed H-1B Electronic Reg System.

It is intended that the registration process will save US employers possibly more than $23 million over the next 10 years to obtain certified Labor Condition Applications and file full H-1B petitions in what is in effect a lottery. Under the proposed rule, the USCIS would establish an advance registration system and it would inform the public of the process for any given year on its website www.uscis.gov. The process would require that the employer register with the USCIS, according to the 2011 USCIS press release, this process would only take 30 minutes. Before the petition filing period begins, USCIS would pick 65,000 statutory cap and 20,00 statutory cap for those with US master’s degrees or higher.

It is important to emphasize that this is a proposed rule and we will not have the guidance on the information the USCIS would require from H-1B employers to register that it wishes to employ a foreign worker to ensure that it will only take 30 minutes to prepare the registration. In addition, if there are fraudulent or duplicate registrations filed, what protections will be in place to ensure that there won’t be unused visas as a result of invalid registrations.

Please note, if you would like to work in the US, you must have a US employer sponsor you for an H-1B visa and the job you are offered must require at least a US bachelor’s degree in a specific field or equivalent. If you would like to speak to a lawyer regarding the H-1B professional worker visa or other US work visa options, please contact us +44(0)20 7092 6830.