On March 3, 2011, U.S. Citizenship and Immigration Services (USCIS) proposed a rule requiring U.S. employers interested in filing H-1B visa petitions for their professional foreign workers, to register with USCIS prior to filing.
As drafted by USCIS, the proposed rule will apply to new employment petitionsto be filed on behalf of foreign workers subject to the regular H-1B numerical cap limitations (65,000 cap) and the 20,000 Master's cap (for workers with a U.S. Master's oh higher degree). The rule proposes to require employers seeking to petition for H–1B workers subject to the cap to first file electronic registrations with (USCIS) during a designated registration period.
If USCIS Does Does Think Cap Will Be Reached on April 1
If USCIS anticipates that the H–1B cap will not be reached by the first day that H–1B petitions may be filed (normally, April 1) for a particular fiscal year, USCIS would notify all registered employers that they are eligible to file H–1B petitions on behalf of the beneficiaries named in the selected registrations. USCIS would continue to accept and select registrations until the H–1B cap is reached.
If USCIS Thinks Cap Will Be Reached On April 1
If USCIS anticipates that the H–1B cap will be reached by the first day that H–1B petitions may be filed for a particular fiscal year, USCIS would close the registration before such date and randomly select a sufficient number of timely filed registrations to meet the
applicable cap. USCIS proposes to allow only those petitioners whose registrations are randomly selected to file H–1B petitions for the cap-subject prospective worker named in the registration. USCIS would create a waitlist containing some or all of the
remaining registrations, based on USCIS statistical estimates of how many more
registrations may be needed to fill the caps should the initial pool of selected
registrations fall short. USCIS would notify the employers of those registrations placed on the waitlist when and if they are eligible to file an H–1B petition. Employers whose registrations were neither randomly selected to file petitions nor placed on the waitlist would receive notification that they were not selected to file petitions in that
Employer may sumbit written comments on or before May 2, 2011.
Where to sumbit comments (please make sure you reference DHS Docket No. USCIS–2008–0014) by one of the following methods:
• Federal eRulemaking Portal: Follow the instructions for submitting comments.
• E-mail: You may submit comments directly to USCIS by e-mail at firstname.lastname@example.org. Include DHS Docket No. USCIS–2008–0014 in the subject line of the message.
• Mail: Chief, Regulatory Products Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529–2020. To ensure proper handling, please reference DHS Docket No. USCIS–2008–0014 on your correspondence. This mailing address may also be used for
paper, disk, or CD–ROM submissions.
• Hand Delivery/Courier: U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529–2020. Contact Telephone Number is (202) 272–8377.
Full text of the proposed rule is HERE.
Posted by Mira Mdivani
Corporate Immigration Attorney
The Mdivani Law Firm LLC
H-1B training for HR and in-house counsel is available HERE.