USCIS Seeks Public Comment on Proposed H-1B Registration System

Introduction

U.S. Citizenship and Immigration Services (USCIS) is seeking public comment on a proposed rule that could save U.S. businesses more than $23 million over the next 10 years, according to USCIS estimates. This proposed rule would establish an electronic registration process for U.S. employers seeking to file H-1B petitions for foreign workers in specialty occupations. The proposed electronic system would minimize administrative burdens and expenses related to the H-1B petition process—including reducing the need for employers to submit petitions for which visas would not be available under the statutory visa cap.
 
The proposed rule was posted to the Federal Register today for public viewing. USCIS encourages formal comments on the proposed rule through www.regulations.gov. The comment period runs for 60 days, beginning March 3, 2011, and ending May 2, 2011. 

Background

The H-1B is a non-immigrant visa which allows U.S. employers to temporarily employ foreign workers in specialty occupations. USCIS proposes to establish an advance, electronic registration process for U.S. employers seeking to file H-1B petitions subject to either the 65,000 statutory cap or the 20,000 statutory visa cap exemption. By statute, H-1B visas are subject to an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions for these visas filed on behalf of individuals with U.S. master’s degrees or higher are exempt from this cap.

Under the proposed rule, USCIS would establish an advance registration system. USCIS would inform the public of the registration process for any given year on its website at www.uscis.gov. The proposed advance registration process would require employers seeking to petition for H-1B workers subject to the statutory visa cap to simply register electronically with USCIS—a process that would only take 30 minutes to complete. Before the petition filing period begins, USCIS would select the number of registrations estimated to exhaust all available visas. Employers would then file petitions only for the selected registrations. The registration system would save employers the currently imposed effort and expense of submitting H-1B petitions, as well as Labor Condition Applications (LCA), for workers who would be unable to obtain visas under the statutory cap. 

Questions & Answers

Q1. Why is USCIS proposing a change to the H-1B filing process?
A1.  This rule reflects the Obama administration’s commitment to smart, tough and effective strategies that leverage the U.S. immigration system to the greatest benefit of immigrants and businesses. The proposed registration system would save employers the effort and expense of submitting full H-1B petitions, as well as LCAs, for prospective employees who will not be able to obtain visas under the statutory cap.

The current process requires U.S. employers to first obtain an LCA from the U.S. Department of Labor. Upon certification of the LCA, the employer may then file an H-1B petition with USCIS on Form I-129 (Petition for an Alien Worker). USCIS may only accept the properly filed H-1B petition if the statutory cap has not been reached.

Q2. Will the proposed advance registration process go into effect right away?  
A2. No. Publication of the proposed rule is only the beginning of the regulatory process where USCIS announces its proposal and solicits public comments on that proposal. This proposed rule provides for a 60-day public comment period, which will allow businesses and the general public to provide input on the proposed system in order to ensure it best meets the needs of employers that rely on H-1B visas to bring in foreign workers for specialty occupations.  After receipt and analysis of the comments, USCIS will draft a final rule. The registration process would only become effective after the final rule is published.

Q3. How would this advance registration impact the processing time for H-1B petitions?
A3. This proposed rule would not impact the processing times for Form I-129, once an H-1B petition has been accepted for adjudication.

Q4. What is the estimated financial impact of this proposed rule for businesses?
A4. USCIS prepared an economic assessment of the benefits and costs anticipated to occur as a result of this rule, and we estimate that the net savings for H-1B petitioners would be more than $23 million over the next 10 years.

Q5. When could USCIS use this advance registration process?
A5.  This electronic registration system will not go into effect until a final rule is published and becomes effective.  If a final version of the rule is published by January 2012, USCIS could implement the proposed registration system for the fiscal year 2013 H-1B season, which opens in April 2012.

Q6. How may I provide comments on the proposed registration process?
A6. To comment on the proposed rule, members of the public can submit written comments by using any one of the following methods:

• Federal Rulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments.
• E-mail: rfs.regs@dhs.gov. Please include DHS Docket No. USCIS-2008-0014 in the subject line of the message.
• Mail: Chief, Regulatory Products Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW, Washington, DC 20529-2020. To ensure proper handling, please reference DHS Docket No. USCIS-2008-0014 on your correspondence. This mailing address may also be used for paper, disk, or CD-ROM submissions.
• Hand Delivery/Courier: U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW, Washington, DC 20529. Contact telephone number: 1-202-272-8377.