[co-authors: Melissa Drennan, Hiroaki Nishikawara]*
USCIS to Implement a Registration System for H-1B Cap Filings
On Monday, Dec. 3, U.S. Citizenship and Immigration Services (USCIS) issued a proposed regulatory rule to establish an electronic registration program for petitions subject to the annual H-1B lottery. Written public comments on the rule will be accepted until Jan. 2, 2019. We expect that the final rule will be issued several months later. Once the rule is finalized, if there is insufficient time to implement the registration system for the Fiscal Year (FY) 2020 cap selection process, opening in April 2019, USCIS will delay implementation of the registration requirement until the FY 2021 H-1B cap season (which will open in April 2020).
Under the proposed registration process, petitioners will be required to electronically register through the USCIS website (www.uscis.gov). The registration period would begin at least 14 calendar days before the first day of filing in each fiscal year. Petitioners would be asked to provide basic information regarding the petitioner and beneficiary when registering, including (1) the employer’s name, employer identification number (EIN) and mailing address; (2) the beneficiary’s full name, date of birth, country of birth, country of citizenship, gender and passport number; and (3) whether the beneficiary has obtained a master’s or higher degree from a U.S. institution. The employer would also need to electronically submit a completed and signed Form G-28, if represented by a lawyer. Multiple prospective beneficiaries may not be listed on a single registration, and a petitioner would only be permitted to submit one registration for a prospective H-1B employee in any given fiscal year.
Following the registration period, USCIS would select certain entries from the electronic registration list and invite those petitioners to submit a full H-1B filing (including all filing fees). USCIS would then set a period of at least 60 days during which petitioners would need to properly file their H-1B cases. The exact days of each 60-day filing window would vary case-to-case — that is, some windows may run from April 1 through late May, while others would run from early May through late June. (USCIS states that separate filing windows would help the agency manage the surge of cap-subject petitions received after it conducts the lottery.)
The new regulation also proposes to change the way cases are selected in the lottery by giving preference to holders of U.S. master’s or higher degrees. Currently, the 20,000 U.S. advanced degree cases are selected prior to the selection of cases for the regular H-1B cap of 65,000. The proposed rule would reverse the selection order, counting all filings (regardless of degree level) toward the 65,000 cap number, and then running the lottery. Any holders of U.S. advanced degrees not selected would be included in the lottery for the additional 20,000 advanced degree numbers. USCIS believes this proposed change will increase the chances that a beneficiary with a U.S. master’s degree or higher would be selected under the H-1B cap by up to 16 percent.
Given that time is already running short before FY 2020 cap-subject H-1B petitions must be submitted, the first week of April 2019, it is unlikely that the electronic registration system will be up and running in time for this year’s H-1B cap season. However, USCIS notes that even if it delays implementation of the registration requirement until FY 2021, it may still employ the change discussed above to give additional preference to holders of U.S. master’s or higher degrees for this coming cap season, provided the regulation is finalized in time.
As of now, we will continue to prepare H-1B filings in anticipation that we will need to once again submit complete petitions at the opening of the lottery period. We will, of course, advise you if the registration program is operational before April 1, and will provide further instructions on how to proceed with preparing your H-1B cases for filing.
USCIS Issues Policy Memo Clarifying the L-1 One-Year Foreign Employment Requirement
As you are likely aware, executives and managers (L-1As) and specialized knowledge employees (L-1Bs) who have worked abroad for a subsidiary, affiliate or branch of a U.S. company for one year out of the prior three years are eligible for L-1 status if they are transferring to a related U.S. entity to work in a similar executive, managerial or specialized knowledge capacity. Last week, USCIS issued a policy memo clarifying how to calculate whether the one-year foreign employment requirement has been satisfied. The memo confirms our long understanding that only the time the employee spends continuously working full time for the company in a managerial, executive or specialized knowledge role outside the U.S. counts toward the one-year foreign work requirement. Brief trips to the U.S. for business or pleasure taken while working for the foreign entity do not interrupt the one continuous year, but those days are subtracted from the time employed abroad. For example, if the worker began employment with the foreign entity on June 1, 2017, and made brief trips to the U.S. totaling 30 days, the worker would not be eligible for L-1 status until July 1, 2018 (12 months, plus 30 days).
The memo also confirms our understanding that time spent subsequently working for the U.S. entity in a sponsored status (i.e., H-1B, E-2, E-3, O-1 or TN status) is tolled (i.e., not counted) for purposes of the three-year lookback period. For example, if the beneficiary worked for the U.S. employer in H-1B status from Jan. 2, 2014, to Jan. 2, 2016, the three-year lookback period for judging whether the employee physically worked outside the U.S. for a subsidiary, affiliate or branch of the U.S. company would run from Jan. 1, 2011, to Jan. 1, 2014. However, the memo does announce a new interpretation of the regulation: Time spent in the U.S. working for the company in a dependent status (such as L-2 status) or pursuant to F-1 Optional Practical Training is counted as part of the three-year lookback period. For example, if the beneficiary worked for the employer in L-2 status from Jan. 1, 2015 to Jan. 1, 2017, his or her three-year lookback period for qualifying foreign employment would run from Jan. 1, 2014, until Jan. 1, 2017 — making it that much harder for these employees to satisfy the one year within the past three years foreign employment requirement.