H-1B Pre-Registration: USCIS Proposed Rule

The speculation about drastic changes to the H-1B registration process has come to fruition with the new proposed rule out of the Department of Homeland Security. The amendment to the current H-1B specialty occupation visa program would require petitioners to electronically register with the United States Citizenship and Immigration Service (USCIS) prior to start of the H-1B lottery each year. USCIS would open the online registration process two weeks before the beginning of the filing period for the new fiscal year. This change would eliminate the requirement for employers to complete paper cap-subject applications during the first week of April.

Major Changes

1. Shortened Application: Petitioning employers would be required to electronically register each beneficiary they wish to sponsor through the H-1B visa program. However, only those registrations selected by USCIS will be required to produce a completed H-1B cap subject petition, including the DOL Labor Condition Application and the long form petition for nonimmigrant worker, or Form I-129.
2. Reversed Selection Process: The new proposed process would reverse the H-1B selection process. USCIS would begin the filing season by first selecting H-1B regular cap applications, including those registrations eligible for the H-1B advanced degree cap exemption. Then, USCIS will select the 20,000 cap-exempt advanced degree petitions. 

 Analysis

In the proposed rule, DHS intends the change in the registration process to produce more H-1B petitions that are selected for beneficiaries for master’s degree or higher degrees. Specifically, DHS estimates that the change will increase the number of master’s degree or higher beneficiaries, with degrees from U.S. institutions, by 16 percent annually. In addition to an increase in the number of H-1B beneficiaries with higher degrees, DHS intends to waive the initial fees for pre-registration in order to save administration costs. DHS estimates that the change would save petitioners a range from $47.3 million to $75.5 million in filing fees. In addition, USCIS would save $1.6 million in processing costs.

Although these savings are attractive, some employers may experience difficulties employing foreign nationals with bachelor degrees or degrees from outside the U.S.. While it is uncertain if the new rule will apply to the 2019 filing season, the proposed rule is open for public comment until January 2^ndof 2019.