The Department of Homeland Security’s final rule titled “Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens” has been published and is available at https://s3.amazonaws.com/public-inspection.federalregister.gov/2019-00302.pdf. With the exception of changes mentioned below, DHS is finalizing the rule as originally proposed, but is suspending the pre-registration requirement for FY2020 cap petitions. The following sections, taken verbatim from the Final Rule, summarize the changes from the Notice of Proposed Rulemaking (NPRM) published in the Federal Register on December 3, 2018.
SUMMARY: This final rule amends Department of Homeland Security (“DHS” or “the Department”) regulations governing petitions filed on behalf of H-1B beneficiaries who may be counted toward the 65,000 visa cap established under the Immigration and Nationality Act (“H1B regular cap”) or beneficiaries with advanced degrees from U.S. institutions of higher education who are eligible for an exemption from the regular cap (”advanced degree exemption”). The amendments require petitioners seeking to file H-1B petitions subject to the regular cap, including those eligible for the advanced degree exemption, to first electronically register with U.S. Citizenship and Immigration Services (“USCIS”) during a designated registration period, unless the registration requirement is temporarily suspended. USCIS is suspending the registration requirement for the fiscal year 2020 cap season to complete all requisite user testing of the new H-1B registration system and otherwise ensure the system and process are operable.
This final rule also changes the process by which USCIS counts H-1B registrations (or petitions, for FY 2020 or any other year in which the registration requirement will be suspended), by first selecting registrations submitted on behalf of all beneficiaries, including those eligible for the advanced degree exemption. USCIS will then select from the remaining registrations a sufficient number projected as needed to reach the advanced degree exemption. Changing the order in which USCIS counts these separate allocations will likely increase the number of beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected for further processing under the H-1B allocations. USCIS will proceed with implementing this change to the cap allocation selection process for the FY 2020 cap season (beginning on April 1, 2019), notwithstanding the delayed implementation of the H-1B registration requirement.
Also of note:
- Summary of Changes from the Notice of Proposed Rulemaking Following careful consideration of public comments received, including relevant data provided by stakeholders, DHS has made a few modifications to the regulatory text proposed in the Notice of Proposed Rulemaking (NPRM) published in the Federal Register on December 3, 2018. See 83 FR 62406. Those changes include the following:
- Initial registration period. In the final rule, DHS is responding to a public comment by revising proposed 8 CFR 214.2(h)(8)(iii)(A)(3), a provision that identifies the initial registration period. In the NPRM, DHS proposed that USCIS would announce the start and end dates of the initial registration period on the USCIS website, but did not specify when these periods would be announced. In response to a comment suggesting that DHS include a 30-day notice requirement prior to the commencement of the initial registration period, DHS is adding that USCIS will announce the start of the initial registration period at least 30 calendar days in advance of such date. In addition, DHS will publish a notice in the Federal Register to announce the initial implementation of the H-1B registration process in advance of the cap season in which such process will be implemented.
- Limitation on requested start date. In the final rule, DHS is responding to public comment by revising proposed 8 CFR 214.2(h)(8)(iii)(A)(4), a provision that identifies when a petitioner may submit a registration during the initial registration period. In the NPRM, DHS proposed that the requested start date for the beneficiary be the first business day for the applicable fiscal year. A commenter pointed out that this requirement created a mismatch in the date requirement for cap-gap protection and the proposed date requirement for this new registration process, which could make it impossible for H-1B petitioners and 8 beneficiaries to receive the cap-gap protections afforded by 8 CFR 214.2(f)(5)(vi). In order to correct this mismatch, DHS is removing the word “business” and revising the text to refer to the first day for the applicable fiscal year.
- Filing period. In the final rule, DHS is responding to public comments by revising proposed 8 CFR 214.2(h)(8)(iii)(D)(2), a provision that indicates the filing period for H-1B cap-subject petitions. In the NPRM, DHS proposed that the filing period will be at least 60 days. In response to public comments stating that 60 days is an insufficient amount of time for a company to gather all the necessary documentation to properly file the petition, DHS is revising the filing period to be at least 90 days.1
- Eligible for exemption. In this final rule, DHS is making several non-substantive changes to the regulatory text as proposed to ensure that the terminology used is consistent with the statute when describing petitions, and associated registrations, filed on behalf of those who may be eligible for exemption under section 214(g)(5)(C) of the INA, 8 U.S.C. 1184(g)(5)(C). For example, in 8 CFR 214.2(h)(8)(iii)(A)(5), DHS deleted “counted” and replaced it with “eligible for exemption.” Similar changes were made in 8 CFR 214.2(h)(8)(iii)(A)(1), (h)(8)(iii)(A)(6)(i) and (ii), (h)(8)(iii)(D), and (h)(8)(iv)(B)(1).
- Petitions determined not to be exempt. In this final rule, DHS is making nonsubstantive edits in 8 CFR 214.2(h)(8)(iv)(B) to clarify how USCIS may process.
1 In the NPRM, DHS discussed in the preamble to the proposal to stagger filing periods, such that the initial date after which petitions based on selected registrations could be filed would be spread out over time. However, in response to comments concerning the potential for negative impact for beneficiaries relying on existing cap-gap provisions in 8 CFR 214.2(f)(5)(vi), DHS is not proceeding with staggered filing periods in this final rule. 9 petitions, when the registration requirement is suspended, that claim exemption from the numerical restrictions but are determined not to be exempt.
With the exception of changes discussed in this final rule, DHS is finalizing this rule as proposed.