USCIS Proposes H1B Cap Pre-Registration Program / Murthy Submits Comments

The U.S. Citizenship and Immigration Services (USCIS) recently announced its intention to establish a system requiring H1B-petitioning employers to register electronically prior to filing any cap-subject H1B petition. This proposal is open for a 60-day comment period, during which members of the public may voice any concerns over the proposed regulation and its potential effects on the current H1B program. The Murthy Law Firm provided extensive comments on the proposed USCIS rule on behalf of our clients, who are both H1B employers and employees. The notice of proposed rulemaking was published March 3, 2011.

Background and Purpose

The notice of proposed rulemaking is discussed in a USCIS press release. As explained by the USCIS, the stated purpose is cost reduction to U.S. businesses, as well as to USCIS service centers. The anticipated cost savings would stem from avoiding the filing of more cap-subject H1B petitions than can be accepted under the annual quota. It is anticipated that this would reduce employer costs for preparing and filing H1B petitions that are not selected for annual caps during years when the annual quotas are quickly filled and exceeded during the initial filing period. The USCIS would save money in the process of rejecting the excess cases and conducting annual lotteries to determine which cases to accept after filing. It is important to note that this currently is only in the proposal stage and not finalized. Thus, those employers who plan to file H1B cases for fiscal year 2012 (FY12) do not need to make any changes at this time. The sixty-day comment period ends on May 2, 2011. The public may express concerns or support for the proposed changes during this period. No changes can go into effect unless or until a final rule is issued and effective.

How the Pre-Registration Might Work

According to the proposed regulation, this pre-registration program would only apply to employers seeking to file H1B petitions that are subject to the annual numerical limitations, often referred to as the cap. The proposal would require the registration for cases filed against both the 65,000 regular cap and the 20,000 exemption known as the master’s or advanced-degree cap. The advanced-degree cap applies to cases filed for foreign nationals who hold qualifying masters’ degrees (or higher education) from U.S. institutions of higher education. All H1B employers filing H1B cap-subject cases would need to file an electronic registration for each H1B worker to be sponsored during a designated registration period. If the USCIS anticipates that the annual quota for H1B visas will be reached during the first days available for filing, the USCIS would then close the registration before that first filing date and randomly select a sufficient number of registrations to meet the available H1B cap numbers.

Pre-Registration if the H1B Cap is not Exhausted

Under the registration system, should the USCIS determine that it has not received enough electronic registrations to use all of the numbers available under the 65,000 cap and 20,000 advanced-degree cap, then it will notify all registered employers that they are eligible to file H1B petitions on behalf of the employee beneficiaries named in the selected registrations. The USCIS would then continue to accept and select electronic registrations until the numbers available through both of the H1B caps are depleted. As the cap becomes closer to being reached, there may be some registration requests placed on a waitlist, for potential filing depending upon the outcome of earlier-filed H1B cases. Employers who have requested registration, but were not selected or placed on the waitlist, would be notified.

Murthy Takes Action with Submission of Comments to USCIS

This proposal came to our attention earlier this year, during a previous step in the regulatory process. Details of the proposal were not available at that time. However, several attorneys at Murthy Law Firm analyzed the registration concept and, as mentioned above, our comments were submitted to the U.S. Department of Homeland Security (DHS) in February 2011. With the publication of the notice of proposed rulemaking, we will submit our concerns and comments again regarding this proposal during the 60-day comment period.

We at the Murthy Law Firm certainly support efficiency and preservation of resources, both for petitioning H1B employers and the USCIS. The current system, during high-volume filing years, is inefficient and wasteful on both fronts. We have concerns about the particular proposal, however, and whether it will disadvantage smaller employers or employers who are less familiar with the immigration process.

Murthy’s Concerns on Behalf of H1B Employers and Prospective H1B Employees

Disadvantages Smaller Employers

The first major concern is the potential effect on smaller companies. These employers may not have the resources to quickly register their precise number of electronic pre-registrations. This potentially would allow larger or more immigration-savvy companies essentially to reserve blocks of H1B visa cap numbers each year.

Timing to File Pre-Registrations is Important

The program also references a registration period. During high-volume filing years, H1B cap-subject cases are filed at the beginning of April, with a request for employment to begin October 1st. The cases are prepared in advance of April. In our experience they often are initiated around January of the particular year. The timing of the registration period is important. If the registration period starts only shortly before April, then the savings to employers is largely negated, as employers cannot wait until the last minute to initiate H1B case preparation. Conversely, if the registration starts months in advance of April, the registrations could be exhausted well before April. This disadvantages employers who are not familiar with the system.

Additional Work for H1B Employers with Potential Delays

This proposed program also introduces another layer of requirements and review in the H1B program. The H1B process already has reviews in place by the U.S. Department of Labor (DOL) and USCIS. In many cases, the U.S. Department of State (DOS) is involved as well in connection with the visa “stamping” process. Additional steps invite additional places for things to go wrong, particularly when technology is involved. Rather than reducing the burden and increasing efficiency, this time-sensitive process could experience the technical problems that are common within other online immigration-related systems. One need only to look to the iCert system for examples of how things can go wrong.

Lack of Program Clarity and Uncertain Benefits

Another concern addressed in the Murthy Law Firm’s comments is the lack of clarity as to how the pre-registration system would operate. In some sections of the proposal, it seems that the pre-registration would be a ‘real time’ registration system, in which receipts would be made available more or less immediately. But the proposal also references the USCIS ‘selecting’ registrations for later notification. It is unclear why this change would be needed now, when, for the past two years the annual H1B cap filing seasons remained available for H1B employers to file H1B cap-subject cases in excess of eight months. Currently, there are no economic indicators that this year will be significantly different. Adding another layer of review and registration at this time would not appear to improve an already-complicated program.

Submit Comments to USCIS by May 2, 2011

Any individual or company may comment on the proposed regulation. Those interested in commenting should take time to review the proposed regulation and formulate logical, potentially persuasive statements. Comments will be made public, as they will be posted as submitted online. One should NOT include any personal information or detail s/he is not willing to share freely.

Conclusion

Voicing your opinion is a way to become part of the democratic process, which is how the U.S. government and legal systems are supposed to work effectively, representing the people. Any reader who has an opinion to share on this proposal should send her/his concerns and comments, as the USCIS considers every issue and comment before finalizing a rule. Although many may hesitate submitting comments publicly, the government does carefully consider the content of comments, as well as the sheer number of those responding. When the USCIS introduced regulations to reduce the time for B-2 tourist visits from six months to 30 days, for example, there was an overwhelming number of comments against the change. That convinced the USCIS to shelve the proposal. This proposal seeks to address a problem that exists only when the economy is good and cap filings far exceed the limit in the first days of eligible H1B filing. In our opinion, it is prudent to avoid replacing one set of problems with another. We at the Murthy Law Firm will contribute our input based upon our extensive experience with H1B case filings, and will update our readers on the progress or outcome of this proposal for an H1B registration system.

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