The Proposed Regulation

U.S. Citizenship and Immigration Services (CIS) announced a proposed rule that would require employers of H-1B workers to complete a pre-filing registration before submitting petitions for individuals subject to the annual H-1B cap. The earliest it would go into effect would be January 2012. Once effective, employers will complete an online registration for each prospective, cap-subject H-1B employee. CIS then will provide a confirmation instructing that the employer may file a petition on behalf of the specific person. Employers still may file petitions for more than one person, but a separate pre-registration will be required for each sponsored employee.

The goal of the new rule is to allow H-1B filings only for cases that will secure one of the limited H-1B visas each year. The current system allows filing of H-1B petitions until CIS announces that the cap has been reached. Because there usually is a delay between the announcement and employers continuing to file petitions, many petitions often are rejected. The new rule seeks to alleviate this problem by allowing only pre-registered employers to file cap-subject H-1B petitions.  

As under the current system, CIS will use a random selection process in certain situations to ensure fairness in allocating H-1B visa numbers. For example, if CIS anticipates receiving more than 85,000 registrations for the April 1 filing date, it will provide a registration period of at least two weeks in March and conduct a random selection at the end of the registration period to allocate the 85,000 visas. In other cases, when H-1B visas continue to be eligible after April 1, CIS may close the registration period and conduct a random selection to allocate the remaining visas based upon the filings it received on the final registration day.

The Big Picture – Immigration Reform

CIS has been discussing this proposed regulation for several years. In 2007, employers filed approximately 130,000 petitions on April 1. CIS conducted a random selection process to allocate the limited number of visas and then rejected the surplus petitions. Employers whose petitions were rejected were left with nothing to show for the expenses they incurred in preparing and filing their petitions. 2007 also was the year immigration reform stalled. The hope had been that Congress would increase the number of H-1B visas and avoid the annual cap and corresponding frustration over rejected petitions, a frustration that grew the next year when 166,000 petitions were filed on April 1, 2008. However, the recession, the diversion of health care reform, and the 2010 mid-term elections have placed immigration reform on the backburner. Accordingly, CIS again is looking at administrative solutions to help employers achieve more predictability, if not relief, in the H-1B filing system. Until Congress increases or lifts the annual quota, this new pre-registration system likely will remain in place.

How to Comment on the Proposed Regulation

CIS is accepting written comments on the proposed rule for a 60-day period, from March 3 to May 2, 2011. Interested parties may submit comments referencing "DHS Docket No. USCIS- 2008-0014" via the web portal (www.regulations.gov), e-mail (rfs.regs@dhs.gov) or mail/courier (Chief, Regulatory Products Division, U.S. Citizenship and Immigration, Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529-2020).

Background Information on the H-1B Visa Category

The H-1B visa category is for the temporary employment of foreign nationals who will work in “specialty occupations.” Specialty occupations generally are those jobs for which at least a bachelor’s degree in a particular field is required. Examples include engineers, accountants and many information technology positions.

Cap-subject petitions are those filed for individuals acquiring the H-1B visa or status for the first time, such as F-1 students changing to H-1B status and individuals abroad who plan to enter the U.S. for the first time using an H-1B visa. These cases often are referred to as “cap-subject” cases because they require one of the 85,000 allotted visas (65,000 for bachelor-level candidates and 20,000 for U.S. graduate degree candidates). The 85,000 visas are for the federal fiscal year, which runs October 1 to September 30. Employers can file H-1B petitions up to six months in advance. For this reason, April 1 is the first day employers can file petitions for the next fiscal year, i.e. for an October 1 effective date.

The cap does not apply to one who already has an H-1B visa or status. An exception that private sector employers should note, however, is that an H-1B foreign national currently working for a university or affiliated nonprofit, a nonprofit research organization or a governmental research organization in most cases will be subject to the cap. These organizations are exempt from the H-1B cap, and when a foreign national transitions to a non-exempt employer, he/she then becomes cap-subject.