USCIS Rule to Require H-1B Employers to Register Before Filing Petitions

On March 3, 2011, the U.S. Citizenship and Immigration Services (USCIS) published a proposed rule that would require employers seeking to petition for H-1B workers subject to the statutory numerical cap to register electronically with USCIS. Before the petition filing period begins on April 1 of each year, USCIS would select the number of registrations predicted to exhaust all available visas. Employers would then file petitions only for the selected registrations.

The H-1B visa program is currently subject to an annual numerical limitation of 65,000 "slots," with an additional 20,000 available to workers who have earned a U.S. master's or higher degree.

If a final version of the rule is published by January 2012, USCIS could implement the proposed registration system for the FY2013 H-1B season, which opens in April 2012.

This rule proposes to require employers seeking to petition for H-1B workers subject to the cap to first file electronic registrations with USCIS during a designated registration period. If USCIS anticipates that the H-1B cap will not be reached by April 1, it would notify all registered employers that they are eligible to file H-1B petitions on behalf of the beneficiaries named in the selected registrations.

If USCIS anticipates that the cap will be reached by April 1, it would close the registration before that date and randomly select a sufficient number of timely filed registrations to meet the applicable cap. Only those petitioners whose registrations are randomly selected would be allowed to file petitions for the prospective workers named in the registrations. USCIS would then create a waitlist containing some or all of the remaining registrations, based on its statistical estimates of how many more registrations may be needed to fill the caps should the initial pool of selected registrations fall short. It would notify the waitlisted employers when and if they are eligible to file an H-1B petition. Employers whose registrations are not selected or wait-listed would be notified of their inability to file petitions in that fiscal year.

Under the rule, the registration period would begin no later than March of each year and last a minimum of two weeks. Registration would require:

1. The employer's name, employer identification number (EIN) and mailing address;
2. The authorized representative's name, job title and contact information (telephone number and email address);
3. The beneficiary's full name, date of birth, country of birth, country of citizenship, gender and passport number; and
4. Any additional information requested by the registration or USCIS.

An employer would only be allowed to register once per beneficiary.

In the event that the number of registrations is less than the number of available cap numbers before April 1, USCIS would announce on its website that the registration period will remain open until such time as USCIS determines it has enough registrations to reach the cap. In the event the USCIS receives significantly more registrations than the H-1B cap, it would conduct a random selection of the registrations timely received sufficient to meet the 65,000 and 20,000 caps. USCIS anticipates selecting approximately 15-20 percent over the regular cap number of 65,000 and approximately 5-10 percent over the master's cap number of 20,000. These figures are based on its historical approval, denial and rejection rates and account for a variety of factors, such as employers who decide not to pursue an H-1B petition; H-1B petitions that are rejected as improperly filed or that are denied based on ineligibility; petitions that are later found revocable; and beneficiaries who ultimately decide not to seek an H-1B visa or are found ineligible for a visa.

The rule would allow employers a minimum 60-day period to file H-1B petitions after receiving confirmation of their registration. Applications filed after this period would be rejected. USCIS would state the applicable filing deadline in each registration selection notice.

The rule prohibits substituting one potential beneficiary for another after registration.

In announcing this proposed rule, the USCIS stated it cannot guarantee every petitioner that an H-1B number will be available for the beneficiary at the time of filing the petition, even after the petitioner has gone through the registration process.

This rule would not affect employers or current H-1B workers.

Dykema's extensive immigration practice routinely assists our clients with a full range of employment-based U.S. immigration matters, including all temporary and permanent visa and labor certification applications, in addition to assisting individual employees with family-based immigration sponsorship and naturalization.

Please contact James G. Aldrich at 248-203-0583 if you have any questions or want to learn more about Dykema's Immigration practice.

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