Sunday February 20, 2022

REQUIRED CHANGES AND GUIDANCE TO  PROPERLY IMPLEMENT THE H-1B REGISTRATION RULE 

by Rabindra Singh

The initial registration period for the fiscal year 2023 H-1B cap will open at noon eastern standard time (EST) on March 1 and run through noon EST on March 18, 2022.  If United States Citizenship and immigration Services (USCIS) receives enough registrations by March 18, it will randomly select registrations and send selection notifications. 

While prospective petitioners and representatives are gearing up to file registrations for the fiscal year 2023 H-1B cap, it is important to understand and analyze whether USCIS has properly implemented the final rule which added the H-1B registration requirement. 

In tandem, it is worth exploring whether USCIS has provided enough guidance to the petitioners and representatives on how to remain fully compliant with each submitted registration to avoid review and enforcement action, if any.

In April 2019 the United States Department of Homeland Security (DHS) implemented a final rule[1] adding a requirement that petitioners seeking to file cap-subject H-1B petitions, including those eligible for the advanced degree exemption, first electronically register with USCIS during a designated period. 

USCIS published the proposed rule on or about September 4, 2019, and allowed written comments to be submitted on or before October 4, 2019. 

During the allowed notice-and-comment period, many commentators expressed concern that the reduced paperwork burden and absence of a higher fees would create a low bar for entry to the registration system, which could lead to a flood of (potentially non-meritorious) H–1B petitions, thus increasing burden and defeating the purpose of selecting skilled advanced degree holders.

To address potential issues of ‘‘flooding the system’’ with nonmeritorious registrations, DHS in its response stated the following: (1) the final rule prohibits a petitioner from submitting more than one registration for the same beneficiary during the same fiscal year; (2) prohibits the substitution of beneficiaries; and (3) requires each registrant to make an attestation in the system indicating their intent to file an H–1B petition for the beneficiary in the position for which the registration is submitted. This attestation is intended to ensure that each registration is connected with a “bona fide job offer” and, to the extent selected, will result in the filing of an H–1B petition.”

Further, per DHS’ final rule,  if USCIS finds that petitioners are registering numerous beneficiaries but are not filing petitions for selected beneficiaries at a rate indicative of a pattern and practice of abuse of the registration system, USCIS will investigate those practices and hold petitioners accountable for not complying with the attestations, consistent with its existing authority to prevent and deter fraud and abuse. 

The final rule mentioned referring the matter to a law enforcement agency for further review and enforcement action. Finally, the final rule stated that USCIS has robust anti-fraud measures in place and will act appropriately should it notice abuse or other issues.

USCIS did not fully and properly implement the final rule. Notably, petitioners are not being required to make any attestation about their intent to file an H–1B petition for the selected registrations

Currently, petitioners are only required to make the following attestation: “I can read and understand English, and have read and understand every question and instruction on this registration (or these registrations), as well as my answer to every question.”

In rushing to finalize and implement the final rule during the Trump administration, DHS/USCIS failed to fully and properly implement the final rule requiring H-1B registrations.

Additionally, the current H-1B registrations do not require employers to specify the position for which they are filing registration. Furthermore, DHS in the final rule neither defined nor provided guidance on what may constitute a “bona fide job offer” connected with a registration. 

Post implementation of the final rule in April 2019, USCIS is yet to issue any guidance on how employers need to document their intent to file H-1B petitions for selected registrations and what may constitute a bona fide job offer. Are petitioners required to document availability of prospective work for the beneficiaries ? Or do petitioners need to maintain a detailed record of job offers such as prospective position title, offered wage, anticipated start date, anticipated worksite location, etc. related to each submitted H-1B registration?

Not requiring petitioners to specify the specific position for which each H-1B registration is getting submitted, and not specifying what documents/information employers need to maintain to demonstrate the bona fide nature of job offer associated with H-1B registration will continue to result in ‘‘flooding the system’’ with nonmeritorious registrations requiring USCIS to conduct multiple lotteries during the FY2023, and also in the future until the rule is properly implemented.

When implementing the final rule, DHS/USCIS anticipated that the registration requirement would result in a more streamlined process of receiving and processing H–1B cap-subject petitions. The fact that DHS/USCIS needed to conduct three (3) separate lotteries during FY2022 to select 78,200[2] H-1B beneficiaries in a booming U.S. economy is a testament of nonmeritorious registrations plaguing the H-1B registration system.

It is also important to highlight that the H-1B registration final rule did not specify a benchmark as to what will qualify as an indicative pattern or practice demonstrating abuse of the H-1B registration system by petitioners submitting registrations but not filing petitions for selected beneficiaries. 

At the time of implementing the final rule, DHS/USCIS didn’t believe that it is necessary or prudent to set a benchmark, such as 10 or 20 percent, before investigating or suspecting that a petitioner violated the attestation or otherwise abused the system. 

The final rule made it clear that cases of potential abuse will involve a case-by-case review of the facts involved, including any mitigating facts or circumstances. For example, a small business that only submits two registrations, both of which are selected, but only files one petition for valid reasons would have a fifty percent failure to file rate, but the relevance of that percentage would be vastly different than a large petitioner with hundreds of selected registrations but a similar fifty percent failure to file rate.

Again, neither the final rule nor any guidance by DHS/USCIS specify the factors or mention the circumstances which could be indicative of potential abuse by petitioners filing H-1B registrations. Also, no guidance exists as to what may constitute valid (or not so valid) reasons for petitioners who fail to file H-1B petitions for the selected registrations.

It would not take much to decipher that the H-1B registration system is broken and need an immediate fix if USCIS again ends up conducting three (3) lotteries to select 78,200 H-1B beneficiaries in a booming U.S. economy.

In conclusion, DHS/USCIS must fully implement the final rule and provide required guidance governing H-1B registrations to streamline the process of accepting and adjudication of H-1B cap petitions. 


[1] Registration Requirement for Petitioners Seeking to File H–1B Petitions on Behalf of Cap-Subject Aliens

[2] The H-1B cap is the congressionally-mandated limit on the number of individuals who may be granted H-1B status during each fiscal year. Most foreign nationals seeking H-1B nonimmigrant classification are subject to the 58,200 cap. Note that Up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B1 program designed specifically for the nationals of Chile and Singapore (1,400 visas for the nationals of Chile, and 5,400 visas for the nationals of Singapore). The annual 6,800 H-1B1 numerical is counted against the H-1B numerical cap. There are an additional 20,000 H-1B visas, which are restricted to individuals who receive a master’s degree (or higher degree) from a United States college or university.

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