The proposed H-1B Electronic Registration rule has been published in the Federal Register, which means that the 30 day comment period has officially begun. The public has until January 2, 2019 to submit written comments for or against the proposal. If you are planning to file an H-1B petition in the April 2019 cap, now is the time to take action and make your voice heard! It is important that submitted comments be well-crafted, and not just random statements that you are for the proposal. For ideas of what not to do, you can see comments already submitted at: https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=175&dct=PS&D=USCIS-2008-0014 . There are about 200 comments submitted already (including about 60 comments that had been submitted in 2011 when the idea was first proposed), the majority of which are just one or two sentences that don’t do much to add to the discussion. Many of the comments are not even on the topic of the proposal. The purpose of comments is to enhance the quality of law and ensure that proposed regulations meet the needs of the people being regulated. Simple statements supporting or opposing the rule are not helpful. A constructive, information-rich comment that clearly communicates and supports its claims is more likely to have an impact on regulatory decision making. The comment process is not a vote. The government is attempting to formulate the best policy, so when crafting a comment it is important that you adequately explain the reasoning behind your position.
To help you in submitting a stronger comment, I have drafted a sample for you below. It is imperative that you modify the sample! Please be sure to personalize your comment to your unique circumstances. Identify credentials and experience that may distinguish your comments from others. If you are commenting in an area in which you have relevant personal or professional experience, say so. This template covers the major portions of the rule that I think need to be modified. Feel free to add additional comments about the other provisions or submit an opposing view. Once you modify your letter to tell your story, you can submit it online as an attachment at: https://www.regulations.gov/comment?D=USCIS-2008-0014-0064
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Date
Ms. Samantha Deshommes
Chief, Regulatory Coordination Division,
Office of Policy and Strategy,
U.S. Citizenship and Immigration Services,
Department of Homeland Security,
20 Massachusetts Avenue NW,
Washington, DC 20529.
Re: DHS Docket No. USCIS-2008-0014, Comments on Proposed Rule: Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens, 83 FR 62406 (December 3, 2018)
Dear Chief Deshommes:
I would like to submit the following comments in response to the USCIS Proposed Rule, “Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens,” published in the Federal Register on December 3, 2018. I am a [prospective beneficiary of an H-1B petition that is planned to be filed in the FY 2020 cap] (change this to your circumstances, whether you are already an H-1B holder, or an employer planning to file, etc).
In the preamble to the NPRM, USCIS explains the challenges associated with the current H-1B selection process and touts the benefits of transitioning to an electronic filing system. Although if done properly, an electronic filing system could certainly improve a process that is far from perfect, there are simply too many questions presented within the NPRM to justify rushing implementation of such a system over the finish line in order to accommodate FY 2020 H-1B cap filings, which will begin on April 1, 2019. In addition, most employers will not realize any cost savings associated with an electronic registration system for FY 2020 cap-subject petitions, as work to prepare and file those petitions under the current system has already commenced in most cases.
In the preamble to the proposed rules, USCIS acknowledges that implementing a registration system for the FY 2020 H-1B cap season might be contrary to ensuring “orderly and appropriate administration of the H-1B allocations.” The implementation of a new registration system is a major undertaking, requiring extensive planning and beta-testing to ensure that its roll-out is as seamless as possible. For this reason, I ask that USCIS suspend implementation of the H-1B registration process until at least the FY 2021 H-1B cap season (which will commence on April 1, 2020) or until such time that a comprehensive, completely functional system that has been thoroughly beta-tested can be rolled-out.
I also ask that USCIS immediately make an announcement to this effect, to provide U.S. employers with adequate clarity and assurances regarding the process that will commence in only a few short months.
Should USCIS implement a registration process in future years, not including FY 2020 as recommend above, the following points must be considered in the final rule:
Temporary Suspension of the H-1B Registration Process
The NPRM states that USCIS may suspend the registration process for a given fiscal year and provide the opening date of the applicable petition-filing period by announcement on its website. This creates uncertainty for every fiscal year. From one year to the next, an employer and prospective H-1B beneficiaries can never be sure whether they will need to register or file petitions. USCIS must understand the amount of time and effort that is necessary for preparing petitions for filing and cannot pull the rug out from under stakeholders from one year to the next. Businesses must have certainty and a stable regulatory environment in order to grow. The lottery process already makes it difficult for businesses to plan future employment strategies. Allowing suspension of the registration process in any given fiscal year will make it even more difficult for businesses to hire necessary talent to meet their business needs and thus remain competitive in the global marketplace.
Proposed Duration and Timing of the Registration Period
The NPRM suggests a 30-day advance notice of the opening of the registration period via the USCIS website and a 14-calendar day registration period. Both of these are too short. USCIS should announce the registration period at least 60 days in advance to give businesses sufficient time to finalize which workers to register. Further, 14 calendar days only gives employers 10 business days to complete registrations. A 30-day registration period will better allow businesses and attorneys to arrange for staff to complete the registrations as their individual business needs permit.
Proposed Information to Include in Registration
The NPRM suggests that only limited information regarding the employer and beneficiary be required for registration. Although this eases the burden of registration on legitimate employers, it also creates an environment open to fraud and abuse. Unscrupulous employers may submit names for entirely speculative positions, thus clogging the system, and DHS provides no solution for preventing non-meritorious registrations. I would first recommend that the registration process require a certified LCA and the LCA number be submitted with the registration. Further, the registration should require at least the job title, work site address, and salary offered and employers must attest that the position as described has been offered to the beneficiary being registered. To further reduce fraud, USCIS should seriously consider limiting a single beneficiary to only one employer registration. There may be some potential beneficiaries who receive multiple legitimate job offers and they could be less likely to be selected if required to only accept one offer and submit one registration. But, the beneficiary may truly only possibly work for one employer and eventually only needs one cap number. Should they wish to accept a different job offer, USCIS allows for a change of employer petition to be filed that is not subject to the cap. Allowing one beneficiary to be registered multiple times with different employers increases the overall number of submissions in the lottery, ultimately making everyone’s chances worse. Further, there is a high risk for fraud and abuse caused by allowing one beneficiary to be sponsored by multiple petitioners. Limiting a beneficiary to one registration will make it easier for DHS to complete its data mining and monitor filing rates of individual employers.
Registration Requirements
Limiting an employer to one single registration for each prospective beneficiary makes sense and should remain as is. However, the mechanics of the employer and/or attorney account should allow an employer/attorney to see all registrations submitted and allow for deletions or modifications during the entire registration window. USCIS gives no reason why it must assign a unique identifying number immediately when the registration is submitted. This could be accomplished at the time the registration window is closed. The system should also alert the user to the potential of a duplicate entry. This will safeguard employers and attorneys from situations in which a beneficiary was accidentally entered twice.
Notification
The NPRM indicates that USCIS would notify all petitioners with selected registrations that the petitioner is eligible to file the petition. The NPRM does not indicate how this notification would be issued (whether electronically or by hard-copy in the mail), when the notification will be issued (immediately or within a number of days after the lottery is conducted), or how much advanced notice petitioners will be given to prepare petitions for filing in the first filing window. As an example, the NPRM provides the scenario of a petitioner’s selection notice being dated March 22nd and the filing period beginning on April 1st. This does not give sufficient time for an employer to prepare a a detailed and thorough petition if it wishes to file it on the first possible day. An employer would practically have to have the petition already completed at the time the lottery is conducted in order to meet the opening date of the filing window. This would counteract the entire purpose of the registration procedure. First, employers and attorneys should receive electronic notification of selection, either by email or a notification within the registration system. Second, the filing window should begin at least 30 days from the date the notification was issued electronically. In addition, I would suggest that H-1B beneficiaries also receive notice of their selection so that they can better plan for both their immigration and career future.
Processing of Filed Petitions
Given that a major goal of this NPRM is to allow USCIS to more efficiently process cap-subject H-1B petitions, USCIS should be required to complete all adjudications of cap-subject H-1B petitions by September 30th of the given year, if visa numbers are used up before the fiscal year begins. Currently, without premium processing, a vast number of cap petitions are subject to extreme delays in adjudication, so much so that F-1 students lose their cap-gap OPT and must stop work because the H-1B petition is not approved timely. This causes employers of some of the “most-skilled or highest-paid petition beneficiaries” to lose their valuable employees. If employers are required to go through an extra registration procedure for the convenience of USCIS, the agency must commit to reasonable processing times for all cap-subject petitions.
With this letter, I urge you to support the U.S. economy by first delaying the implementation of this rule until after the FY 2020 cap and further modify the rule to increase stability and reduce fraud and abuse. Thank you for your consideration, time, and support in this matter.
Sincerely,
XXXX
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