DHS Proposes Petitioner Pre-Registration Requirement for Selecting H-1B Cap-Subject Petitions

January 30, 2019

 

Update: DHS published a final H-1B cap filing and processing rule on January 31, 2019 that becomes effective on April 1, 2019, the first day of the FY 2020 cap-filing season. DHS suspended the portion of the rule relating to the new employer preregistration requirement for the upcoming FY 2020 fiscal year filing season, so cap-subject filing procedures should remain very similar to past procedures. Changes other than the employer preregistration requirement, including how DHS counts petitions towards the cap, go into effect on the effective date.

 


The proposed rule

On December 3, 2018, DHS proposed amending its regulations governing petitions filed on behalf of H-1B beneficiaries who may be counted toward the 65,000 H-1B cap (regular cap) or the 20,000 beneficiaries with advanced degrees from U.S. institutions of higher education who are eligible for an exemption from the regular cap (advanced degree exemption).

Proposed Rule - Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens

Read the Proposed Rule - 83 FR 62406 (December 3, 2018)

Written comments must be received on or before January 2, 2019. NAFSA commented on December 19, 2018.

Read NAFSA's Comment Letter

The proposed amendments would:

  • Require petitioners seeking to file H-1B petitions subject to the regular cap, including those eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period. USCIS would select from among the registrations timely received a sufficient number projected as needed to meet the applicable H-1B allocations.
  • Change the process by which USCIS counts H-1B registrations (or petitions, if the registration requirement is suspended):
    • By first selecting registrations submitted on behalf of all beneficiaries, including those eligible for the advanced degree exemption.
    • USCIS would then select from the remaining registrations a sufficient number projected as needed to reach the advanced degree exemption.
    • Under current policy, USCIS first applies the random selection process to H-1B petitions eligible for the 20,000 numbers reserved for aliens with a U.S. master's degree or higher. USCIS believes that "Changing the order in which USCIS counts these separate allocations would 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."
     

U.S. institutions of higher education, who are exempt from the H-1B cap as employers, would likely focus on how the proposal might impact the application of the F-1 OPT cap-gap rules, since any changes to when or whether an H-1B petition can be filed could impact eligibility for the cap-gap benefit.

Under the current H-1B cap-gap regulation at 8 CFR 214.2(f)(5)(vi) (which is not the subject of the proposed rule), it is the actual filing of an H-1B petition that triggers any applicable automatic cap-gap extension. Under the current filing system, petitioners file cap-subject petitions for all beneficiaries the petitioner wants to employ in H-1B status, and petitions are then selected for processing after the petition is filed. This means that every beneficiary that is eligible for it can get at least some benefit from the cap-gap provision, at least until their petition is rejected as "non selected."

Under the proposed rule, a petitioner must first register with USCIS during a designated registration period, and would be able to file a petition only if the beneficiary that they registered has been selected in the new registration process.

There is also an issue with the proposed section (h)(8)(iii)(4), which reads:

… A petitioner may submit a registration during the initial registration period only if the requested start date for the beneficiary is the first business day for the applicable fiscal year.

The H-1B cap-gap benefit established by 8 CFR 214.2(f)(5)(vi), however, is available only if the H-1B petition “[r]equests an employment start date of October 1 of the following fiscal year,” [8 CFR 214.2(f)(5)(vi)(2)]. Specifying “the first business day for the applicable fiscal year” as proposed, rather than “October 1 of the applicable fiscal year,” would effectively “break” the H-1B cap-gap benefit whenever the first business day for the applicable year is other than October 1 (for example, if October 1 happened to fall on a Saturday, and the first business day of that fiscal year is October 3). The remainder of the cap-gap regulation, as well as SEVIS programming, are also set to extend the cap-gap benefit until that fixed October 1 date. NAFSA focused on this issue in its comment letter.

Finally, as USCIS mentions in the preamble to the final rule, "[c]hanging the order in which USCIS counts [the 20,000 numbers reserved for aliens with a U.S. master's degree or higher] would 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." That means that there may be fewer H-1B cap slots available for holders of foreign equivalent degrees and U.S. bachelor's degrees.