Employer Concerns with Proposed Rule for Pre-Registration of H-1B Cap Petitions

Are you concerned about the new H-1B pre-registration process that could apply to the H-1B cap season starting in April 2019? Employers and those in the higher education industry are already expressing dismay about the apparent hastiness of such a major change to the H-1B cap process. My office will be carefully tracking this rule and ensure that all H-1B petitions that we file comply with the pre-registration rule.

According to Compete America, a coalition of employers and higher education and industry organization, the Department of Homeland Security’s proposed timing of the implementation of the new H-1B pre-registration process and its misclassification of this rule as not economically significant will be harmful and disruptive to employers and the US economy. The DHS issued its Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions and Regulatory Plan, which includes a proposal entitled “Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap Subject Aliens.” It proposes the establishment of an electronic registration program for H-1B cap-subject petitions to allow US Citizenship and Immigration Services (USCIS) to more efficiently manage the intake and selection process for H-1B cap petitions. This registration process will cover H-1B beneficiaries who may be counted under section 214(g)(1)(A) of the Immigration and Nationality Act (INA) (“H-1B regular cap”) or under section 214(g)(5)(C) of the INA (“H-1B master’s cap”).

The rule has not yet been published and it was sent to the Office of Management and Budget (OMB) on October 17, 2018. Once OMB completes its review, then it will publish a notice of proposed rulemaking in the Federal Register, to which the public can comment.

Also, DHS has noted its plan to create a regulation revising the selection process for the H-1B master’s cap and regular cap. For both the pre-registration and selection regulations, DHS has stated that neither policy is economically significant, and thus they are not major rules, which provide protections to the public regarding cost assessment and the minimum period of time required before the rules can take effect.

According to Compete America, the final pre-registration rule may not be published until less than one month before it would take effect, which it claims would have deleterious effects on employers and the economy. Compete America proposes that the pre-registration rule should take effect in later calendar year 2019 and not apply to H-1B cap petitions of fiscal year 2020 (with a start date on or after October 1, 2019), since changing the rules so suddenly would be highly disruptive. It also proposes that the H-1B pre-registration rule should be reclassified as economically significant so that once the final rule is published it cannot take effect fewer than 60 days following its publication. This would allow for employers to perform a thorough economic cost analysis and plan for uncertainties. Finally, Compete America proposes that DHS separate the H-1B pre-registration and H-1B selection regulations and treat the latter as not economically significant and be applicable to the H-1B FY2020 numerical limits.

Compete America acknowledges that the intent of the H-1B pre-registration process is to facilitate agency efficiency and also possibly eliminate unnecessary costs for employers that file H-1B petitions. However, it cautions that these new rules will cause uncertainty, confusion and anxiety that will only negate these efficiencies. It notes that there are unintended consequences of a rushed pre-registration process that requires less information, since it would encourage the registration of frivolous cases and cause great disorder and complexity to the already byzantine H-1B filing process.