Proposed Rule Would Establish Advance Registration Process

The Department of Homeland Security's U.S. Citizenship and Immigration Services March 2 issued a proposed rule to establish an advance registration process for U.S. employers seeking to file H-1B petitions for high-skilled foreign workers.

The proposed rule, published in the March 3 Federal Register (76 Fed. Reg. 11,686), would save U.S. businesses more than $23 million in administrative costs associated with filing H-1B petitions for which visas are ultimately not available because of congressionally mandated caps, according to USCIS.

H-1B visas are granted to highly skilled, college-educated, temporary foreign workers for a maximum of six years. There is a 65,000 H-1B visa cap each fiscal year, and a separate 20,000 cap for H-1B workers with advanced degrees.

“The proposed rule would create a more efficient and cost-effective process for businesses interested in bringing workers in specialty occupations to the United States,” USCIS Director Alejandro Mayorkas said in a March 2 statement.

Comments will be accepted on the proposed rule for 60 days, until May 2, USCIS said.

Minimize Burdens, Expenses

USCIS said the advance registration process for H-1B visas is important to minimize both agency administrative burdens and employer expenses.

During years of high demand for H-1B workers, the cap has been reached within days of the opening of the filing period for a new fiscal year, on or around April 1, the agency said.

For fiscal year 2009, USCIS received nearly 163,000 H-1B petitions between April 1 and April 7, 2008 (59 BTM 123, 4/15/08). For fiscal 2010, however, the economic downturn resulted in lower H-1B visa demand and the cap was not reached until Dec. 21, 2009, and the fiscal 2011 cap was not reached until Jan. 27, 2011.

To ensure the fair and orderly distribution of H-1B visas, USCIS said, it currently employs a random selection process after announcing a final date on which it will accept petitions.

USCIS has found that when it receives a “significant number” of H-1B petitions--usually 100,000 or more--“it is difficult to handle the volume of petitions received in advance of the random selection process,” the agency said.

For employers, preparing and mailing H-1B petitions with the required filing fee can be burdensome, if the petition must ultimately be returned because the cap was reached and the petition was not selected, the agency said.

Electronic Registration

Under the proposed rule, employers seeking to petition for H-1B workers subject to the statutory cap would register electronically with USCIS during a designated period.

The agency would establish a registration period beginning no later than March, for a minimum span of two weeks. The public would be notified of the start and end dates via the USCIS website.

According to the agency, the electronic registration process would take employers about 30 minutes.

Employers would supply USCIS with information including their business name, employer identification number, and mailing address; an authorized representative's name, job title, and contact information; and information about the visa beneficiary including full name, date of birth, country of birth and of citizenship, gender, and passport number.

According to the proposed rule, if USCIS anticipates that the H-1B cap will not be reached on the first day petitions are accepted, the agency would notify all registered employers that they are eligible to file H-1B petitions. USCIS would continue to accept and select registrations until the cap is reached, the agency said.

On the other hand, if USCIS anticipates that the H-1B cap will be reached on the first day of filing, the agency would close the registration before the filing date of April 1 and randomly select a sufficient number of registrants to meet the applicable cap. Only registrants who were randomly selected would be eligible to file full H-1B petitions.

The agency would create a waiting list containing some or all of the registrants not randomly selected, according to USCIS.

LCAs Obtained After Selection

The current H-1B process requires employers to obtain a labor condition application from the Labor Department prior to filing for a petition with USCIS. Under the new rule, an employer would register with the agency prior to obtaining an LCA.

Only if a registrant is selected to receive an H-1B visa would the employer then proceed to submit the LCA to DOL for certification and prepare the corresponding H-1B petition on behalf of the immigrant worker.

This would further lower the administrative burden and associated preparation costs for employers that are not selected under the H-1B caps, USCIS said.

The rule also permits USCIS to temporarily suspend the H-1B registration process for any given fiscal year or to permanently terminate the program. According to USCIS, this may be necessary if Congress greatly increases the annual H-1B caps.

USCIS said the earliest the electronic H-1B registration process would go into effect would be for fiscal year 2013, with petitions accepted starting April 1, 2012. The delay accounts for the regulatory process and a projected date for issuance of a final rule in January 2012.


Text of the proposed rule can be accessed at http://op.bna.com/dlrcases.nsf/r?Open=amky-8eksgb.