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DHS/USCIS RIN: 1615-AB71 Publication ID: Fall 2018 
Title: Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap Subject Aliens 
Abstract:

The Department of Homeland Security proposes to amend its regulations governing petitions filed on behalf of H-1B beneficiaries who may be counted under section 214(g)(1)(A) of the Immigration and Nationality Act (INA) ("H-1B regular cap") or under section 214(g)(5)(C) of the INA ("H-1B master's cap").  This rule proposes to establish an electronic registration program for petitions subject to numerical limitations for the H-1B nonimmigrant classification. This action is being considered because the demand for H-1B specialty occupation workers by U.S. employers has often exceeded the numerical limitation. This rule is intended to allow U.S. Citizenship and Immigration Services (USCIS) to more efficiently manage the intake and selection process for these H-1B petitions. The Department published a proposed rule on this topic in 2011. The Department intends to publish an additional proposed rule in 2018. The proposal may include a modified selection process, as outlined in section 5(b) of Executive Order 13788, Buy American and Hire American.

 
Agency: Department of Homeland Security(DHS)  Priority: Other Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage 
Major: No  Unfunded Mandates: No 
EO 13771 Designation: Other 
CFR Citation: 8 CFR 214   
Legal Authority: 8 U.S.C. 1184(g)   
Legal Deadline:  None

Statement of Need:

Consistent with the Buy American and Hire American, EO 13788’s direction to suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries, this regulation would help to streamline the process for administering the H-1B cap and increase the probability of the total number of petitions selected under the cap filed for H-1B beneficiaries who possess a master’s or higher degree from a U.S. institution of higher education each fiscal year.

Summary of the Legal Basis:

The Secretary of Homeland Security’s authority for these proposed regulatory amendments is found in various sections of the INA, 8 U.S.C. 1101 et seq., and the Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 101 et seq. General authority for issuing the proposed rule is found in section 103(a) of the INA, 8 U.S.C. 1103(a), which authorizes the Secretary to administer and enforce the immigration and nationality laws, as well as section 102 of the HSA, 6 U.S.C. 112, which vests all of the functions of DHS in the Secretary and authorizes the Secretary to issue regulations. Further authority for the regulatory amendments in the proposed rule is found in section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), which authorizes the Secretary to prescribe by regulation the terms and conditions of the admission of nonimmigrants; section 214(c) of the INA, 8 U.S.C. 1184(c), which authorizes the Secretary to prescribe how an importing employer may petition for an H-1B nonimmigrant worker, and the information that an importing employer must provide in the petition; and section 214(g) of the INA, 8 U.S.C. 1184(g), which provides the H-1B numerical limitations and various exceptions to those limitations.

Alternatives:

Anticipated Costs and Benefits:

The proposed rule would aim to result in better resource management and predictability for both USCIS and petitioning H-1B employers. An electronic registration process could benefit most of the regulated public by potentially reducing the overall cost and time involved in petitioning for H-1B nonimmigrant workers. However, some additional costs may be incurred from the electronic registration process to some petitioners.

Risks:

Timetable:
Action Date FR Cite
NPRM  03/03/2011  76 FR 11686   
NPRM Comment Period End  05/02/2011    
NPRM  10/00/2018 
Additional Information: USCIS 2443-08. Includes Retrospective Review under EO 13563.
Regulatory Flexibility Analysis Required: Yes  Government Levels Affected: None 
Small Entities Affected: Businesses  Federalism: No 
Included in the Regulatory Plan: Yes 
RIN Information URL: www.regulations.gov   Public Comment URL: www.regulations.gov  
RIN Data Printed in the FR: Yes 
Agency Contact:
Kevin Cummings
Chief, Business and Foreign Workers Division, Office of Policy and Strategy
Department of Homeland Security
U.S. Citizenship and Immigration Services
20 Massachusetts Avenue NW, Suite 1200,
Washington, DC 20529-2200
Phone:202 272-8377
Fax:202 272-1480
Email: kevin.j.cummings@uscis.dhs.gov