The Department of Homeland Security (DHS) has issued its long-awaited Notice of Proposed Rulemaking (NPRM) to amend USCIS Regulations relating to cap-subject H-1B petitions filed under both the regular cap and advanced degree exemption. Comments from the public may be submitted to the agency within the next 30 days.  This does not affect cap-exempt H-1B petitions.

 While the proposed changes are subject to possible modification, be aware that the upcoming H-1B cap season will likely be dramatically different from past years.  Highlights of the proposed changes include:

Pre-Registration

Electronic Registration/Pre-Registration
There is a proposed requirement that all cap-subject H-1B employers first register each intended petition electronically with USCIS during a designated period rather than directly filing complete H-1B petition packets with USCIS.  Basic information relating to the petitioner and beneficiary would be required in order to register. An employer would be limited to one registration per beneficiary within the same fiscal year.  USCIS does not plan to impose a registration fee at this time.  Only those employers whose registrations are selected (selected registrants) would be eligible to file cap-subject H-1B petitions during the particular filing period. 

Initial Registration/Random Selection 
An initial, time-limited registration period would be created with a start date at least 14 days prior to April 1^st, which is the first date when cap-subject petitions may be filed each year. During the initial registration period USCIS would determine whether sufficient employer registrations were received to reach the regular cap for the new fiscal year.

• If not, USCIS would notify all registrants that they may file their H-1B cap-subject petitions on behalf of the named beneficiaries and registration would remain open to employers.
  
  • On a rolling basis, USCIS would continue accepting and selecting electronic registrations until the regular H-1B cap is met, checking registration numbers at the end of each day to determine when there are enough to meet the cap.
    
  • A random selection may or may not be conducted as determined by USCIS.
• If so, USCIS would close the registration period and randomly select enough registrants to meet the regular cap.
• USCIS would notify the selected registrants of the applicable H-1B petition filing period and where to file their H-1B cap-subject petitions.
• After the selection process is completed for the regular cap, USCIS would determine whether there are enough remaining eligible registrants to meet the 20,000 advanced degree exemption.
  • If not, USCIS would notify all registrants that they may file their H-1B cap-subject petitions on behalf of the named beneficiaries and registration would remain open to employers.
  • USCIS would continue accepting and selecting electronic registrations until the advanced degree exemption is met. A random selection may or may not be conducted as determined by USCIS.
• If so, USCIS would close the registration period and use a computer-generated random selection process to meet the advanced degree exemption.

Petition Filing for Selected Registrants Only
USCIS would notify the selected registrants when and where they may file their H-1B petitions on behalf of the named beneficiaries.  Only the selected registrants would be permitted to file cap-subject H-1B petitions.

• An employer that registers to file multiple petitions (each on behalf of a different beneficiary) may be selected to file some of its petitions and not selected for others.

Unselected Registrations
Unselected registrations would remain on reserve for the fiscal year so that if USCIS determined that it must increase the number of registrations to meet the regular cap or advanced degree exemption (presumably in case some of the selected registrants fail to file or their H-1B petitions are denied), then USCIS would select from among the reserve registrants and if needed re-open the registration until the regular and advance degree exemptions are met. 

• If the registration period is re-opened, USCIS would announce the re-opened registration period start date on its website and accept additional registrations sufficient to meet the new projected amount of registrations needed to meet the regular cap and/or advanced degree exemption. 

 Selection Process

Regular Cap Exhausted First
With the goal of maximizing approvals for the most-skilled or highest-paid petition beneficiaries, the proposed regulations would change the sequence for considering petitions filed for beneficiaries counted against the regular cap or beneficiaries counted under the advanced degree exemption.

• USCIS would select registrants toward the regular cap first until that cap is reached.  This would include all registrants (that is, those seeking to employ beneficiaries with only bachelor degrees or equivalent as well as those with advanced degrees from US education institutions).
• Only when the projected number of registrations needed to meet the regular cap is reached would USCIS select registrants who are eligible for the advanced degree exemption.

The proposed rule states that by changing the selection order, USCIS believes that the total number of petitions selected under the regular cap for H-1B beneficiaries possessing a master’s or higher degree from a U.S. institution of higher education will increase overall each fiscal year.

If you wish to discuss your plans for the upcoming H-1B cap season or the proposed rule, please contact your Fox Rothschild attorney or any of the firm’s Immigration Practice Group co-chairs.