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H-1B Notice of Proposed Rule-making
On November 30, 2018, USCIS issued a notice of proposed rulemaking which could affect the H-1B Lottery for new filings in April. A Notice of Proposed Rulemaking is the first step in changing Federal administrative procedure so this is very early in the process but it indicates a real change. We would like to explain the changes since it could be a significant change in processing. Briefly, according to the notice, USCIS intends to implement a system whereby an H-1B employer seeking a new H-1B would register the company, the position, and the prospective employee with USCIS for purposes of the H-1B cap lottery in an abbreviated application. The lottery would then be conducted based on these abbreviated filings. Only those cases selected in the lottery would need to file a complete petition. This could be a welcome change to the H-1B lottery process, lowering the costs of filing, depending on how it is implemented. In addition, USCIS would complete the Master’s Cap lottery before the Regular Cap lottery, which could increase the chances of success for Master’s degree candidates.
How Should Petitioners and Beneficiaries Prepare for the Upcoming H-1B Cap Season?
To be clear, the timing of this change is very uncertain. It seems very unlikely that USCIS can finalize and implement the proposed regulation before next April, given the notice and comment requirements and technical challenges to implementation. So that we are not left unprepared to file for this critical deadline, Christoffersen Law will plan to prepare H-1B cap subject petitions for FY2020 on March 29, 2019 for an April 1 filing as we have in the past.
For those of you who are interested in the details of the proposed rule, the following summary has been provided by the American Immigration Lawyer’s Association (AILA):
“On November 30, 2018, the Department of Homeland Security (DHS) announced a notice of proposed rulemaking that would require petitioners seeking to file H-1B cap-subject petitions to register electronically with the U.S. Citizenship and Immigration Services (USCIS) during a designated registration period. Under the proposed rule, USCIS would also reverse the order by which the agency selects H-1B petitions under the H-1B cap and the advanced degree exemption. The proposed regulation was published in the Federal Register on Monday, December 3, 2018. USCIS will accept public feedback on the proposed regulation until January 2, 2019.
Electronic Registration Process
Under the proposed regulation, petitioners seeking to file H-1B cap-subject petitions would be required to register electronically with USCIS during a designated registration period. The electronic registration period would begin at least 14 calendar days before the first date the H-1B filing window opens each fiscal year, commonly April 1, and would remain open for at least 14 calendar days. USCIS would give at least 30 calendar days’ notice of the registration period on the USCIS website.
USCIS would then conduct the annual H-1B lottery from the pool of timely-filed electronic registrants. The rule proposes that petitioners whose petitions are selected will be notified that they are eligible to file an H-1B petition within a designated filing period. The duration of the filing period for registrants who are selected would be at least 60 days. According to the proposal, a registrant therefore could wait until they have been notified of selection before submitting the corresponding H-1B petition on behalf of the beneficiary named in the selected registration. USCIS would hold some unselected H-1B registrations in reserve so that additional cases could be filed if the quota is not reached due to petition rejections, denials or withdrawals, or if an employer does not file an H-1B petition on behalf of selected beneficiary. USCIS could reopen registrations if more cases are needed to fulfill the annual quota.
The registration process would require basic information from both the employer and the beneficiary, including:
- the employer’s name, identification number (EIN), and address;
- the employer’s authorized representative’s name, job title, and contact information;
- the beneficiary’s name, date of birth, country of birth, country of citizenship, gender, and passport number, as well as whether the beneficiary has obtained a master’s or higher degree from a U.S. institution of higher education;
- the employer’s attorney or accredited representative, if applicable; and
- any additional basic information requested by the registration system or USCIS.
Employers would also be required to attest that they intend to file an H-1B petition for the beneficiary in the position for which the registration is filed, among other attestations.
Petitioners would need to file a separate registration for each beneficiary and would be limited to one registration per beneficiary for the same fiscal year. USCIS is not proposing to charge a fee for electronic registration at this time.
Allocation of H-1B Cap Numbers
The second major change proposed by DHS is to reverse the order by which the agency selects H-1B petitions under the H-1B cap and the advanced degree exemption. Currently, in years when the H-1B cap and the advanced degree exemption are both reached within the first five days in which H-1B cap petitions may be filed, the advanced degree exemption beneficiaries are selected before the H-1B cap beneficiaries.
The proposed rule would reverse the selection order and count all applicants towards the number projected as needed to reach the regular H-1B cap first. Once a sufficient number of applicants have been selected for the H-1B cap, USCIS would then select applicants towards the advanced degree exemption. USCIS projects that this change in the process would result in a 16% increase in the number of selected beneficiaries with a master’s degree or higher from a U.S. institution of higher education.
The proposed rule contains a severability clause which provides that DHS could continue to implement either the electronic registration system or the allocation process by which the agency would select H-1B petitions under the H-1B cap and the advance degree exemption independently in the event it cannot implement the both together, for example, if one of the processes is enjoined or invalidated by a court.
Timeline for Finalizing the Regulation
USCIS has indicated it would like to finalize and implement the regulation and the electronic registration system in time for the opening of the upcoming Fiscal Year (FY) 2020 H-1B cap filing season on April 1, 2019. However, the likelihood that USCIS will finalize both by April 1, 2019 is slim, given the tight timeframe by which the agency must complete the regulatory process.
The 30-day notice and comment period opened on December 3, and will remain open until January 2, 2019. USCIS must then review the comments and any final version of the regulation must address concerns raised by the public. Before a final rule can be published, it would first be reviewed by the Office of Management and Budget (OMB). Once the rule is finalized, the government would identify a date for the rule to go into effect.
In the notice of proposed rulemaking, USCIS acknowledges that it might not be possible to implement the electronic registration process in time for FY2020 H-1B cap filing season, particularly if additional user testing and vetting of the new system is required. Thus, if the rule is finalized as proposed, but there is insufficient time to implement the registration system in time for the FY2020 cap selection process, USCIS could suspend the electronic registration system for the upcoming H-1B filing season, and continue to accept complete H-1B petitions with supporting documents as it has done in the past.”
Opinion Piece: America is Rejecting More Legal Immigrants than Ever Before
An opinion piece from the New York Times, dated November 15, 2018, discusses increasing and often arbitrary H-1B denials and RFEs from USCIS: https://www.nytimes.com/2018/11/15/opinion/trump-legal-immigrants-reject.html.
December 2018 Visa Bulletin
Final Action Dates for EB1 remain backlogged for the month of December, 2018: The final action date for EB1 shifted slightly to July 1, 2017 for all areas except China and India, which are backed up to September 1, 2016. For individuals who are not current but who are interviewed at USCIS during this time, post-interview the file will be sent to the National Benefits Center awaiting a current visa number.
The December 2018 visa bulletin lists the following EB2 and EB3 final action dates:
EB-2 Worldwide and all areas except India and China: Action Date = current
EB-2 India: Action Date = April 1, 2009 (1 week movement)
EB-2 China: Action Date = July 1, 2015
EB-3 Worldwide and all areas except India and China: Action Date = current
EB-3 India: Action Date = March 1, 2009 (slight forward movement)
EB-3 China: Action Date = June 8, 2015 (movement of only one week)
It is notable that USCIS has indicated that adjustment of status applicants may use the filing dates for the month of December. This date allows for filing but not approval, which is still a benefit to applicants. For applicable dates, see the complete visa bulletin at: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2019/visa-bulletin-for-december-2018.html.
For Family Cases, the F2A final action date shifted slightly to October 8, 2016 for all areas, except Mexico, which moved to September 22, 2016.