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Proposed Rule Requiring Registration for H-1B Cap Petitions

The Department of Homeland Security (DHS) is proposing a rule that will require employers who are filing petitions on behalf of individuals subject to the H-1B cap to first file electronic registrations with USCIS during a designated registration period. H-1B petitions are subject to a numerical cap of 65,000 per fiscal year and an additional 20,000 H-1B petitions are set aside for individuals who have earned a U.S. masters’ degree or higher. Based on the electronic registration information, USCIS will be able to determine whether the H-1B cap will be reached by the first day that H-1B petitions are accepted for filing for a particular fiscal year. If the cap is not reached, USCIS would then notify the registered employers of their eligibility to file an H-1B petition and will continue to accept and select registrations until the H-1B cap is reached. If USCIS determines that the H-1B cap will be reached by the first day that H-1B petitions may be accepted for filing for a particular fiscal year, it will close the registration before the said date and randomly choose registered petitioners to meet the allotted cap. Remaining registrations may be placed on a waitlist should the H-1B applicants that were originally selected be denied. Those who are not waitlisted will be notified of their inability to file an H-1B petition for that particular fiscal year. Under this proposed rule, USCIS hopes this registration and selection process will save the prospective employer from investing the time and resources in filing an H-1B without knowing whether the cap has been reached. Additionally, it hopes this new process will reduce the administrative strain on service centers handling H-1B cases.

DHS seeks comments to the proposed registration rule. Written comments may be submitted on or before May 2, 2011 via e-mail at rfs.regs@dhs.gov and include DHS Docket No. USCIS-2008-0014 in the subject line of the message.