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Electronic Registration for H-1Bs on the Horizon

U.S. Citizenship and Immigration Services (USCIS) must be thinking positively that the economy will improve soon. It looks like some time next month, USCIS will publish a notice of proposed rule making for a new electronic registration system for H-1B petitions subject to the annual 65,000 cap. In “Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Aliens Subject to Numerical Limitations”, USCIS will propose a cheaper way for employers to register for cap-based H-1B visa petitions before they spend the more expensive filing and legal fees to prepare a full-blown H-1B petition. The full petition would be filed only after an employer learns it has been selected for a cap-based petition for a specific employee. The purpose of the rule is to make it easier for USCIS to manage the flood of applications in good hiring years when there is only one or a few days to file for H-1B petitions that reach the annual cap quickly. In years past, when there was a surge in hiring, the annual allotment of H-1Bs were used up in a day on April 1 or within a week or two for jobs that would begin the following October. By contrast, during the last two years when the economy has been poor and hiring has been down, the H-1B cap has not been reached until much later in the fiscal year. (Hmm, would low demand in high unemployment years and high demand in growth years reflect the need for market based numbers rather than arbitrary caps???) Typically in growth years, on April 1, USCIS receives a deluge of applications for jobs beginning the next fiscal year the following October 1. Because the applications all arrive at once, it has been impossible for the agency to determine which applications arrived first and in what order, so USCIS has resorted to a lottery. This makes an employer’s ability to hire a foreign worker a matter of luck, rather than predictable need. That means employers cannot plan projects with fast turn-around times or meet deadlines with any predictability. Keep in mind that certain employers or jobs are not subject to the cap, so H-1B petitions can be filed all year long.

Until Congress fixes the cap and removes numerical limitations, or allocates sufficient numbers to meet economic need, even with an electronic registration system, there is no certainty for employers. However, the registration system will reduce the overall costs for employers who try to get an H-1B number but are not successful. It appears the registration system will have a fee of its own, but it will be substantially less than the thousands of dollars incurred to file a full application package. Moreover, the electronic registration system will be designed to identify employers who file more than one petition for the same employee for the same job so they cannot game the system. Assuming the proposed rule comes out in January, it looks like there will be a notice and comment period until March. Employers should stay tuned for publication of the notice and they should be prepared to send in comments.