United States: The Pre-Registration System For H-1 Cap Filings – A Losing Race To April 1, 2019?

Will thousands of H-1 cap petitions be received by USCIS Service Centers on Monday, April 1, 2019, or will online pre-registrations during the month of March make Monday, April 1 a quiet day at USCIS?

It was anybody's guess last week when USCIS filed a proposed regulation introducing a pre-registration system for H-1 cap filings (with written comments to be received on or before January 2, 2019). But soon thereafter USCIS tweeted "It is likely that the FY 2021 cap season would be the first time that electronic registration is required, if the rule is finalized as proposed," indicating that the agency is not optimistic that it can get everything in place for the 2020 cap filing season which begins on April 1, 2019.

As stated in the proposed regulation: "The proposed amendments would require petitioners seeking to file H-1 Petitions subject to the regular cap, including those eligible for the advance degree exemption to first electronically register with U.S. Citizenship and Immigration Services ("USCIS") during a designated registration period. USCIS would select from among the registrations timely received a sufficient number projected as needed to meet the applicable H-1B allocations. DHS also proposes to change the process by which USCIS counts H-1B registrations by first selecting registrations submitted on behalf of all beneficiaries, including those eligible for the advance degree exemption. USCIS would then select from the remaining registrations a sufficient number projected as needed to reach the advance degree exemption."

Pre-Registration Rather Than Preparing Unnecessary Petitions

All would agree that a pre-registration system has the great advantage of precluding the need to prepare and file H-1B petitions that may never be looked at and never used. The proposed system anticipates registration for the lottery by submitting a short form that provides basic information about the company, the job offer and the foreign employee. A separate registration form would be submitted for each applicant, and a petitioner could file only one registration for any individual applicant.

It is proposed that the registration period would be for a mere 2 weeks prior to the April 1 start date of the cap season. After April 1, but before October 1, 2019, the effective authorization date of employment, a 60-day period would be established to actually file the petitions.

USCIS would preserve non-selected registrations on a waiting list in case the algorithm used by USCIS to calculate how many registrations must be selected in order to fill the quotas, turns out to be inadequate.

The proposed regulation outlines in precise detail how USCIS computes its algorithm for determining how many registrations to select based upon and analyzing prior cap lottery selections.

The Two Lotteries – Favoring U.S. Masters' Degree Graduates

USCIS, by proposing that the general cap lottery be run first including all U.S. Masters' degree candidates, anticipates that as many as an additional 5,000 more such candidates would be selected as would otherwise be the case if the current system were in place, which provides that the Masters' degree lottery is run first and those not selected, a smaller group, are then dropped into the general lottery pool.

USCIS seems to believe that this is more consistent with the "Buy American Hire American" initiative because it is thought to potentially result in a higher number of American trained applicants being selected. Of course, this may result in less highly trained foreign Masters and Ph.D. applicants being considered for an H-1.

Will They Be On Time and Will It Work

The proposed regulation anticipates that there might be challenges in implementing the system on time, both from a technical perspective and a legal perspective and, in fact, the proposed regulation specifically references the possibility that there might be litigation that they would have to deal with. Thus, it provides for suspension or delay of the registration period, although the proposal is not too clear on exactly how that would be implemented and if it anticipates that some form of the current process may still need to be used for the 2020 cap season, which begins on April 1, 2019. [Fiscal Year 2020 begins on October 1, 2019.]

What Does This Mean for Employers

Given the uncertainty as to implementation and timeline, employers really do not have a choice and must prepare for the H-1 cap season as always, especially after the USCIS tweet. Employers must anticipate that it will likely be necessary to put together actual petitions with supporting documents as they always have done and, even if at the last moment it will turn out that printing out and assembling those forms becomes unnecessary. The groundwork to assure that each registration filed, which is potentially an actual petition, must be done to assure that each applicant does, in fact, qualify for a specialty occupation position and that the potential documentation needed is identified and ready should the registration be selected for actual filing of a petition.

In an environment where H-1 petitions are challenged; Requests for Evidence are issued en masse; and a significant number of petitions are denied, no registration can be wasted and it must be the product of a robust preparation process so that a compelling and convincing petition can readily be prepared should this registration be selected.

The Pre-Registration System For H-1 Cap Filings – A Losing Race To April 1, 2019?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions