- On December 3, 2018, USCIS-DHS, published a notice of proposed rulemaking (NPRM) to change the H-1B filing and random selection (read lottery) process.
- The new process will require employer’s to electronically register to file each prospective petition for their H-1B employees during the designated “registration period”.
- Prospective employees with a U.S. masters or higher degree will be given first preference and be considered for the CAP first.
- Given everything that must happen with just under 90 days, the implementation of this new registration process may not be completed by April 1st; therefore, USCIS may end up following the same process it did last year for this year’s CAP.
- The USCIS may still adopt a different algorithm (we don’t know how the random selection process is completed) for this year, prioritizing U.S. master’s or higher degree visa holders.
- This is a proposed rule and the final regulations are awaited. We will provide you with a roadmap for your H-1B filings as soon as we have clarity. In the meantime, it is best to prepare as if the CAP process will be the same as last year.
- The new process will require employers file electronically to register each potential H1B employee.
- An attestation stating an intent to file an H-1B petition for each prospective employee will be part of the process
- Petitioners will only be allowed to submit one registration per employee
- No fees for registering
- A further selection from the pool of timely-filed electronic registrations will be conducted and only those who are selected will be eligible to file a full petition
- Selected registrants will be allowed 60 days (within a certain period) to file
- Filing may be staggered for registrants
- Employers may submit registration information for far more employees than they might end up filing.
- Registrations may be incomplete, or be for individuals who may not actually be able to qualify for an H-1B petition
- Under the current system, when H-1B petitions are rejected, the USCIS returns petition packages with a control number and evidence of having considered the petition against the CAP. No such evidence is likely to accompany registrations not considered for the CAP, causing confusion, distrust and anxiety among employees
- Multiple registrations could be made for the same set of individuals vying for employment with several employers
- Providing preferential treatment for U.S. master’s or higher degree holders would have the unintended consequence of discriminating against U.S. bachelor’s degree holders and jobs that don’t traditionally require someone with a U.S. master’s degree, or higher
- The algorithm used to select candidates from active registrants continues to remain a mystery