On March 3rd, 2011, USCIS proposed a change to the rules related to how U.S. employers would be required to file H-1B visa petitions which are cap subject. The H-1B program allows U.S. employers to petition annually to employ foreign professionals – up to 65,000 foreign workers with Bachelor’s degrees, and an additional 20,000 with U.S. Master’s degrees.
The proposed rule seeks to require U.S. employers wishing to file petitions for H-1B workers subject to the cap to first file electronic registrations with USCIS during a designated advance registration period. If USCIS anticipates that the H-1B cap will not be reached on the first day that H-1B petitions are filed, it would notify all registered employers that they are eligible to file on behalf of the foreign nationals named in the selected registrations. USCIS would thereafter continue to accept selected registrations until the H-1B cap is reached. If USCIS anticipates that the H-1B cap would be reached on the first filing day of a particular year, USCIS would close the advance registration period before such date and randomly select a sufficient number of timely filed registrations to meet the applicable cap and notify all registered employers whether or not they may now file the petition.
USCIS anticipates that this new process would reduce administrative burdens and associated costs on employers who currently spend significant time and resources compiling the petition and supporting documentation without the certainty that the petition will be accepted.
It is important for our clients to note that this new rule will not affect H-1B filings for this year – USCIS will begin accepting cap H-1B petitions (without any preregistration requirement) as of April 1, 2011.
This “preregistration” process is described by USCIS as a solicitation of general information from U.S. employers concerning their identities and the identity of the proposed H-1B hire. We will keep our clients updated as to formal adoption of these regulations and we stand ready to assist our clients regarding the registration requirements for next year’s H-1B cap season!
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