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Proposed H-1B Cap Registration Fee Rule Cleared by OMB

On August 12, 2019, the Office of Management and Budget (OMB) completed its review of a proposed Department of Homeland Security (DHS) regulation regarding a filing fee for H-1B cap registration. This is the next step in the regulatory process towards the USCIS proposal to implement an H-1B cap registration process for the FY2021 H-1B cap for the filing period likely to take place in March or April 2020.

The H-1B cap registration program is part of DHS’ Spring 2019 regulatory agenda. As part of H-1B cap registration, USCIS issued a proposed regulation to collect a nominal fee for each H-1B cap registration submission (likely in the range of $10 or $20).

The proposed H-1B cap registration rule is expected to be published in the coming days. Once published, the public will be given an opportunity to comment on the proposed registration fee before the rule is finalized based on consideration of public comments.

Background

The H-1B “cap” or “quota” is a limitation on the number of “new” H-1B petitions that can be approved in a fiscal year. The current quota is 85,000, of which 20,000 are reserved for individuals who hold a United States master’s degree or higher degree.

Historically USCIS has accepted H-1B cap-subject petitions in the first five business days in April, six months before the start of the fiscal year. In each of the past several years, there have been far more petitions filed than available H-1B numbers. As a result, USCIS has performed a computer-generated lottery to determine which petitions would be selected.

H-1B Cap Registration Process

Earlier this year USCIS began the process of instituting a registration program that would completely change how cap-subject H-1B visa petition requests are submitted. Under the new system, petitioning employers will no longer submit a full H-1B petition with USCIS filing fees to USCIS. Instead, U.S. employers / petitioners will be required to submit a registration for each qualified H-1B visa beneficiary whom they wish to sponsor in the H-1B cap lottery. The registration will require a number of critical pieces of information about each H-1B beneficiary. If the number of registration submissions exceeds the 85,000 limit, USCIS will conduct a computer-generated lottery to determine which registrations to select.

For each selected registration, the employer / petitioner will then have a window of time to submit a full H-1B visa petition to USCIS. The submission period is expected be at least 90 days.

Progress Towards Finalizing H-1B Cap Registration

USCIS issued a final regulation on January 31, 2019, which outlined the broad goals for H-1B cap registration, but it has delayed the implementation. Therefore, the new registration process has not yet gone into effect. The completion by OMB of its review is the next step in determining whether petitioning employers must pay a fee for each H-1B cap registration, and if so, the amount of the fee.

It is widely believed that USCIS will finalize the registration fee rule in order to implement the new system in time for the FY2021 H-1B cap for the filing period likely to begin in March or April 2020. To meet this goal, the agency must publish the proposed fee rule, provide for a notice and comment period, and then publish a final regulation regarding the registration fee prior to the next H-1B cap petition filing period.

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About this Author

John Quill Immigration Attorney Mintz

John’s practice encompasses all aspects of immigration and nationality law. John draws on over two decades of experience to help companies and their employees obtain nonimmigrant visas, including B, E, H, J, L, O, and TN visas. He also handles applications for PERM labor certification; extraordinary ability, outstanding researcher, and national interest waiver petitions; adjustment of status procedures; consular processing; and naturalization. John has distinguished himself in the use of legal operations and technology to streamline practices and develop innovative solutions to challenging...

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Susan J. Cohen, Immigration Attorney, Mintz Law Firm
Member / Founding Chair, Immigration Practice

Susan is a nationally recognized immigration lawyer. As Chair of Mintz’s Immigration Practice, she works with corporate clients to address their immigration challenges. Susan is very active in the American Immigration Lawyers Association (AILA) and has contributed to federal and state immigration regulations. She is frequently quoted in the media. She is also an editor of Mintz’s Immigration Law blog and has been recognized as a “Top Author” by JD Supra. Susan helped to lead a Mintz team that worked with the ACLU of Massachusetts and others to obtain a temporary restraining order on the 2017 Travel Ban. Through her pro bono work, she has helped many immigrants obtain asylum.

Susan is the founder and Chair of the firm’s Immigration Practice, which is composed of 12 attorneys and 18 immigration specialists and assistants who service the immigration needs of Mintz’s existing corporate and individual clients, and of new clients who choose the firm precisely for its knowledge in the field of immigration and nationality law.

Susan is actively involved in the American Immigration Lawyers Association (AILA) and has chaired and co-chaired a wide range of national AILA committees, including the National Planning Committee for AILA’s Annual Immigration Law Conference. She has also served on the review board for AILA periodicals and has served as the ABA’s liaison to the Department of Labor on immigration-related issues. She is a frequent panelist at AILA, ABA, and other immigration-related conferences, and a contributor to AILA, ABA, and other immigration-related publications.

Susan was involved in contributing to the US Citizenship and Immigration Services (USCIS) regulations implementing the Immigration Act of 1990, the Department of Labor regulations implementing changes to the H-1B visa category as a result of the American Competitiveness and Workforce Improvement Act of 1998, and the Department of Labor PERM labor certification regulations issued in 2004. Susan also advised the Commonwealth of Massachusetts in drafting the legislation which resulted in the Massachusetts Global Entrepreneur in Residence (GEIR) program.

Susan has won awards for her political asylum work from the Supreme Judicial Court of Massachusetts, the Political Asylum/Immigration Representation (PAIR) Project, the Massachusetts Lawyers Weekly, and Mintz.

During law school, she served on the Cardozo Law Review.

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