H-1B Pre-Filing Registration Coming?

U.S. Citizenship and Immigration Services (USCIS) has announced its intention to create an “H-1B Registration and Lottery” system to register online for an H-1B number in advance of the release of the annual quota of H-1Bs. Targeted for use for the fiscal year 2012 (FY 2012) filing period which starts on April 1, 2011, few details are currently available about how exactly the system would work. Presumably, employers would “register” their intent to sponsor a particular worker for H-1B status and, if demand exceeds the “H-1B cap” allocation, a lottery would be used to determine which employer petitions would be accepted for processing.

As background, the annual limit for first-time, cap-subject H-1Bs is 65,000 (less 6,800 set aside for citizens/nationals of Chile or Singapore) with an additional 20,000 available to H-1B applicants who possess a Master’s or higher degree from a U.S. academic institution. Each April 1, filing for the next fiscal year’s cap (the federal government’s fiscal year runs from October 1 to September 30) begins. In the fiscal years 2008 and 2009, the annual H-1B limit was exceeded within the first few days of filing, resulting in a random, computer-generated lottery for available H-1B numbers. In those years, employers prepared and filed complete petitions for submission on April 1 and USCIS then returned thousands of rejected petitions by mail to employers. This process took several months. The new system is intended to avoid those situations.

Ogletree Deakins will monitor developments and notify clients should the H-1B registration system be required by USCIS for H-1B petitions in calendar year 2011.