H-1B Visa Cap Online Registration System: Will it Impact The 2012 H-1B Visa Cap Season?

Late last year, the US Citizenship & Immigration Service (“USCIS”) announced that it will be implementing a new web-enabled Specialty Occupation H-1B Visa Cap Registration system whereby the H-1B visa cap petitioners would register online prior to filing their H-1B visa cap-subject petitions. The Columbus Ohio Immigration Lawyers at The Law Firm of Shihab & Associates has been following these developments and will bring you updated information as they become available. This article will discuss the new H-1B Visa Cap Registration, its applicability and whether it will impact the upcoming H-1B visa cap season (Federal Fiscal year 2012) which will begin on April 1, 2011.

On March 3, 2011, the USCIS published in the Federal Register a Notice of Advanced Rulemaking in which it provided the public the opportunity to comment on this proposal. The comment period will end on May 2, 2011. Once implemented, the USCIS promised that the new system will yield increased efficiency and cost-effectiveness in the administration of the H-1B visa petition process. Under this proposal, H-1B visa petitioning employers seeking to file a cap-subject H-1B visa petition must first register through a web-enabled process that they intend to file such petition. Once the registration process is complete, the USCIS would then make a selection through a lottery system if the number of registrations exceeded the visas available and then announce which beneficiaries will be eligible to have their H-1B visa petitions filed. The USCIS states that this process would save the petitioning employer from having to unnecessarily file a cap-subject H-1B visa that will be rejected through a lottery system.

What is the Effective Date of the H-1B Visa Cap Registration Process?

The new H-1B Visa Cap Registration process has not become effective yet. At the present time, this is only a proposal. The USCIS is seeking comment from interested parties until May 3, 2011 as it is required by law through what is called Notice of Proposed Rulemaking or NPRM. Once comments are received, the USCIS will then compile and disseminate the comments to the public and issue final regulations. It is not known when the final rules will be published. On that basis, it is not known yet when the H-1B Visa Cap Registration system will become effective.

Will the new H-1B Visa Cap Registration Impact the Upcoming FY 2012 H-1B Visa Cap Season?

No. The H-1B Visa Cap Registration process will not affect any cap-subject H-1B visa petitions filed towards the FY 2012 the filing for which begins on April 1, 2011. Because no final regulations have been promulgated by the USCIS, the H-1B Visa Cap Registration Process is still not in force. It is expected that regulations installing the new H-1B Visa Cap Registration Process to be effective federal fiscal year 2013 filings beginning on April 1, 2012.

What Information will USCIS Request in the Pre-filing Registration Process?

On March 14, 2011 the USCIS made public a document entitled Privacy Impact Assessment in which it announced the information that it will seek from petitioners in the pre-filing H-1B Visa Cap Registration process. The Information includes: (1) petitioner’s name and employer identification number (EIN), petitioner contact information, (2) petitioner designated user’s name and contact information, (3) beneficiary’s name, date of birth, country of birth, country of citizenship, gender, and passport number, and (4) any additional information requested by the registration or USCIS. In requesting this information, the USCIS stated that this new process will eliminate some unethical practices such as multiple H-1B visa petition filings by one employer for the same beneficiary and other fraudulent filing by fictitious companies. Once the information is compiled, the USCIS will use the information and check it against information available publically from undisclosed sources. USCIS also stated that the information gathered through this process will not be shared with any external organizations or agencies.

Will the new H-1B Visa Cap Registration Process Delay the H-1B visa Processing Times?

That remains to be seen. USCIS advises that the new H-1B Visa Cap Registration process will not delay the processing times once a petition is accepted for processing. It is still not known how the USCIS will use the information it will receive from the pre-filing registration process or whether the preliminary information provided to the USCIS will in any way predispose the adjudication of the H-1B visa process. As mentioned earlier, the USCIS will be checking the initial information provided by the petitioning employer against available public records sources, presumably available on the Internet. Will the USCIS group the cases based on such initial check? I believe it is troublesome that the USCIS will make such initial cross-checking and could cause the agency to preadjudicate the H-1B visa petition prior to the filing of the petition itself.

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