USCIS to Propose Pre-Registration System for Fiscal Year H-1B Petitions
November 30, 2018
Today, the USCIS released an advance copy of proposed regulations, set to be published on December 3, 2018. These regulations call for changes to the way employers will file Fiscal Year H-1B (“FYH”) petitions, also known as H-1B Cap cases. After publication of the proposed regulations, the USCIS will accept public feedback for a 30 day period and sometime after that, must review and respond to comments before it can issue final regulations. In an announcement on their website today, the USCIS stated that they hope to have the new system in place for the upcoming FYH 2020 season, but also acknowledged that they might delay the pre-registration process if there is “insufficient time to implement the new registration system” or in case of “technical challenges with the H-1B registration process.”
Unfortunately, this means that employers still do not have clarity on the best way to prepare for the upcoming FYH season.
Included in the proposed changes:
- Employers seeking to sponsor employees for a FYH will need to register online prior to submission of a FYH petition. Registration includes: name of employer, FEIN, mailing address, employer contact person and information; beneficiary’s name, date of birth, country of birth, citizenship, gender and passport information; whether the beneficiary has a US MS degree or higher; and attorney information
- The public will be given 30 days’ advance notice before the registration period begins
- The USCIS will hold a lottery based on the pre-registrations and notify lottery winners of a filing window (60 day period). There will be staggered periods in which to file, to manage the workflow at the USCIS. The USCIS provided a possible scenario in which some employers might be able to file FYH petitions from April 1 to May 31, and some might be given a filing window of May 1 to June 30.
- Only 1 registration per employee per employer; no substitution of beneficiaries
- The lottery will first be conducted for the regular FYH cap (65,000 selected), followed by the US MS cap (20,000 selected). Per the USCIS, this will permit a larger number of US MS degree holders to gain a FYH number.
- Some unselected H-1B registrations will be held aside, like a waiting list, in case the FYH quota is not reached due to abandonment (failure to file during the window), denials, withdrawals or late rejections. If the annual quota is not reached after an initial registration, the USCIS can reopen the registration period to receive new registrations.
These proposed changes do not apply to H-1B extensions or amendments, or requests to change H-1B employer.
Weaver Schlenger will continue to closely monitor the proposed changes and comment period and report any developments on our website. We encourage any employers who wish to comment during the comment period to do so and contact us if you would like to discuss this.
To best prepare for FYH season, we recommend that clients continue to compile their complete lists of candidates and work with Weaver Schlenger to assess eligibility, gather required documentation, and prepare for filing Labor Condition Applications (LCAs). Because we cannot determine at this time if the registration process will be in effect for FYH 2020 season, employers should prepare for the possibility of pre-registration, and the possibility that complete H-1B petitions will be required.