The USCIS set for publication a notice of proposed rule making that will dramatically change how H-1B cap subject cases are filed with the Service. In short, it will create an electronic filing system to secure an H-1B cap number and if a petitioner is accorded a cap number the petitioner can then file its petition. This is to avoid the situation where all H-1B cap numbers are used up at the beginning of the filing window by employers filing petitions. When that has happened in the past, the USCIS has returned the filings to the petitioner/attorney of record. The USCIS states that it hopes to alleviate this burden on the Service and to save employer’s the time and expense of preparing petitions for which it is unclear a number will be available. This notice will be published in the Federal Register. Below are the particulars.

DHS/USCIS RIN: 1615-AB71 Publication ID: Fall 2010
Title: Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Aliens Subject to Numerical Limitations

Abstract: The Department of Homeland Security is proposing to amend its regulations governing petitions filed on behalf of alien workers subject to annual numerical limitations. This rule proposes an electronic registration program for petitions subject to numerical limitations contained in the Immigration and Nationality Act (the Act). Initially, the program would be for the H-1B nonimmigrant classification; however, other nonimmigrant classifications will be added as needed. This action is necessary because the demand for H-1B specialty occupation workers by U.S. companies generally exceeds the numerical limitation. This rule is intended to allow USCIS to more efficiently manage the intake and lottery process for these H-1B petitions.

Agency: Department of Homeland Security (DHS) Priority: Other Significant
RIN Status: Previously published in the Unified Agenda   Agenda Stage of Rulemaking: Proposed Rule Stage
Major: No Unfunded Mandates: No
CFR Citation: 8 CFR 103; 8 CFR 299 (To search for a specific CFR, visit the Code of Federal Regulations.)
Legal Authority: 8 USC 1184(g)
Legal Deadline:  None

Statement of Need: U.S. Citizenship and Immigration Services (USCIS) proposes to establish a mandatory Internet-based electronic registration process for U.S. employers seeking to file H-1B petitions for alien workers subject to either the 65,000 or 20,000 caps. This registration process would allow U.S. employers to electronically register for consideration of available H-1B cap numbers. The mandatory proposed registration process will alleviate administrative burdens on USCIS service centers and eliminate the need for U.S. employers to needlessly prepare and file H-1B petitions without any certainty that an H-1B cap number will ultimately be allocated to the beneficiary named on that petition.
Summary of the Legal Basis: Section 214(g) of the Immigration and Nationality Act provides limits on the number of alien temporary workers who may be granted H-1B nonimmigrant status each fiscal year (commonly known as the "cap"). USCIS has responsibility for monitoring the requests for H-1B workers and administers the distribution of available H-1B cap numbers in light of these limits.

Alternatives: To ensure a fair and orderly distribution of H-1B cap numbers, USCIS evaluated its current random selection process, and has found that when it receives a significant number of H-1B petitions within the first few days of the H-1B filing period, it is extremely difficult to handle the volume of petitions received in advance of the H-1B random selection process. Further, the current petition process of preparing and mailing H-1B petitions, with the required filing fee, can be burdensome and costly for employers, if the petition is returned because the cap was reached and the petition was not selected in the random selection process. Accordingly, this rule proposes to implement a new process to allow U.S. employers to electronically register for consideration of available H-1B cap numbers without having to first prepare and submit the petition.

Anticipated Costs and Benefits: USCIS estimates that this rule will result in a net benefit to society. Currently, employers submit a petition, at great expense, without any certainty that an H-1B cap number will ultimately be allocated to the beneficiary named on the petition. The new mandatory, Internet-based registration system allows employers to complete a much shorter and less expensive registration process for consideration of available H-1B cap numbers. The new system will also relieve a significant administrative burden and expense from USCIS.

This rule will reduce costs for some employers and increase them for others. For employers that are not allocated a cap number and therefore do not ultimately file a petition, there will be a significant cost savings. Employers that are allocated a cap number and ultimately file a petition will experience the new and additional cost of filing the registration. Additionally, USCIS will incur additional costs to implement and maintain the registration system. USCIS has weighed the benefits and costs associated with this rule and determined that the benefits to society outweigh the costs.

Risks: There is a risk that a petitioner will submit multiple petitions for the same H-1B beneficiary so that the U.S. employer will have a better chance of his or her petition being selected. Accordingly, should USCIS receive multiple petitions for the same H-1B beneficiary by the same petitioner, the system will only accept the first petition and reject the duplicate petitions.

Timetable:
Action Date FR Cite
NPRM  01/00/2011 
NPRM Comment Period End 03/00/2011
Additional Information: USCIS 2443-08
Regulatory Flexibility Analysis Required: Yes  Government Levels Affected: None
Small Entities Affected: Businesses  Federalism: No
Included in the Regulatory Plan: Yes
RIN Data Printed in the FR: Yes
Agency Contact:
Claudia F. Young
Department of Homeland Security
U.S. Citizenship and Immigration Services
Service Center Operations, 20 Massachusetts Avenue NW.,
Washington, DC 20529
Phone:202 272-8163
Email: cf1young@dhs.gov

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