Earlier this week, the Department of Homeland Security (DHS) proposed to amend regulations to require petitioners filing H-1B cap-subject petitions to pay a $10 registration fee for each registration submitted for consideration during the H-1B cap selection process. This aligns with previous American Immigration Lawyers Association (AILA) predictions based on responses to comments received on the original rule that partially took affect on April 1, 2019.
After numerous public comments, USCIS posted the final H-1B registration rule in January, requiring petitioners to register in a new system on behalf of cap-subject aliens. The rule also reversed the order in which H-1B petitions are selected for adjudication in an attempt to increase the number of H-1B visa holders with U.S. master’s degrees. While the rule was published on January 31, 2019, the electronic registration requirement was suspended until the FY 2021 cap season “to complete user testing and ensure the system and process are fully functional.”
Since President Donald Trump signed the “Buy American, Hire American” executive order in 2017, the Department of Homeland Security has made a series of changes to adjudication processes through policy memoranda. The executive order put a special emphasis on the H-1B program and directed the Secretary of Homeland Security to “suggest reforms to ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” USCIS Director Cissna stated:
“The registration system, once implemented, will lower overall costs for employers and increase government efficiency. We are also furthering President Trump’s goal of improving our immigration system by making a simple adjustment to the H-1B cap selection process. As a result, U.S. employers seeking to employ foreign workers with a U.S. master’s or higher degree will have a greater chance of selection in the H-1B lottery in years of excess demand for new H-1B visas.”
The new registration system would allow employers to wait until a registrant is selected for the cap before submitting the H-1B petition. Only basic information would be required during the registration process for the employer and beneficiary, including the employer’s name, EIN, address, authorized representative information, basic biographic information about the beneficiary, and notification of the employer’s attorney or accredited representative.
Once the registration system is implemented and this secondary rule (titled “Registration Fee Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap Subject Aliens”) is finalized, cap-subject petitions will only be accepted for adjudication if properly registered and selected for the fiscal year cap. The rule notes that the fee is an estimate of the cost to run the program and could change once more data is collected, likely after the 2020 cap season. The H-1B registration final rule estimated that petitioners as a whole will save $42.7 to $66.8 million annually based on the costs of unselected petitions, but would spend approximately $8.5 million to $12.9 million for registration costs (an average of $15.63 to $30.80 per registration) depending on the method the petitioner chooses to complete the registrations.
While we have not yet seen the proposed system, the functionality described in the regulations will require the petitioner to first register the company or organization and then separately register each proposed beneficiary, paying the $10 registration fee for each. DHS has acknowledged that registering electronically to determine selection for the cap (as opposed to filing a full paper petition) is a lower barrier to entry and some petitioners could choose to register a larger number of beneficiaries.
The proposed rule that would require a $10 registration fee is open for public comment until October 4, 2019. Since the registration fee rule is not considered a “major rule” it is not subject to a 60-day delay in effective date and DHS has stated the shorter comment period is necessary to implement the fee for the FY 2021 cap filing season. We expect that the rule will be published and effective prior to the 2020 cap season.
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