The Department of Homeland Security (DHS) is proposing to impose a fee on employers who file H-1B cap registrations under the forthcoming online registration system. Employers would be required to pay a $10 fee per registration. The proposed rule will be published Wednesday, and public comments will be accepted for 30 days.
Under the new H-1B cap registration system, employers seeking to file H-1B cap cases will first be required to register online in order to enter the H-1B lottery. Employers will then be permitted to file full H-1B petitions only for registrations that are selected in the H-1B lottery, which they can file with U.S. Citizenship and Immigration Services (USCIS) during a 90-day window. A regulation announcing the new system was finalized in early 2019 but implementation was postponed so that the system could be developed and tested.
The $10 registration fee would be required for each H-1B cap registration at the time of submission. Fee payments are expected to be made through Pay.gov, the federal government’s online fee system.
According to DHS, the primary purpose of the fee is to offset the cost of the H-1B cap registration system, but it is also being imposed to reduce the filing of “frivolous” H-1B cap registrations. DHS confirms that it intends to monitor the registration system for employers who submit a large number of H-1B registrations, but file selected petitions at a significantly lower rate.
What’s next for H-1B cap registration
Once the proposed rule is published in the Federal Register, employers and other members of the public will have 30 days to submit comments. Separately, the agency plans to provide an additional 60 days for public comments on the proposed cap registration form. DHS must review and respond to these comments and obtain OMB approval of a final rule before it can be implemented.
Because these key elements of H-1B cap registration are still being finalized, it is not yet clear whether the system will be ready in time for the FY 2021 cap season. In order for online registration to be implemented for the upcoming season, the new system would need to be fully tested and functional by early 2020.
A number of advocacy groups – including the U.S. Chamber of Commerce, AILA and CompeteAmerica – have called on DHS to confirm by September 15, 2019 whether it intends to implement the system early next year, as well as urge the agency to engage in beta testing and solicitation of additional stakeholder feedback before implementation. This could minimize technical problems and other disruptions during the very busy cap season.