Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
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United States Citizenship and Immigration Services (USCIS) has announced a proposed rule designed to decrease administrative and employer costs associated with the H-1B petition process. Under the proposed rule, employers would electronically register with USCIS during an enrollment period of at least two weeks in March of each year, prior to the April 1 filing period start date. Participating employers would file a single registration for each prospective H-1B worker they seek to hire (i.e., multiple prospective H-1B workers could not be listed on a single registration). Unlike current requirements, procuring a Labor Condition Application (LCA) prior to filing a petition would not be required.
If USCIS anticipates that the filing cap (regular cap of 65,000; master’s degree exemption cap of 20,000) will not be reached by the first day of the filing period, the agency would notify electronic registrants of their eligibility to file a petition for the prospective H-1B workers named in the registrations. Petitioning employers would then proceed to submit the LCA. USCIS would continue to accept and select registrations until the cap is reached.
However, if USCIS anticipates the filing cap will be reached by the first day of the filing period, the agency would close the registration early and randomly select a “sufficient number” of timely filed registrations to meet the applicable cap. Only if a registration was among those randomly selected would the employer be able to file a petition for the person named in the registration. USCIS would place on a waitlist some (or all) remaining registrations based on agency estimates concerning the cap and anticipated filings.
USCIS contends that the proposed registration process will save the agency and H-1B filers as much as $23 million over ten years. The agency believes the registration process will only take employers 30 minutes, thereby reducing personnel, mailing and filing expenses normally incurred in the process.
According to a USCIS fact sheet on the proposed rule, the agency could implement the proposed registration system for the fiscal year 2013 H-1B season, which opens April 2012.
USCIS encourages formal comments on the proposed rule at www.regulations.gov. The comment period opened on March 3, 2011, and ends May 2, 2011.