11686 Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules 

an employee or annuitant of the same 

sex, and the term ‘‘domestic 

partnership’’ is defined as a committed 

relationship between two adults, of the 

same sex, in which the partners— 

(i) Are each other’s sole domestic 

partner and intend to remain so 

indefinitely; 

(ii) Maintain a common residence, 

and intend to continue to do so (or 

would maintain a common residence 

but for an assignment abroad or other 

employment-related, financial, or 

similar obstacle); 

(iii) Are at least 18 years of age and 

mentally competent to consent to 

contract; 

(iv) Share responsibility for a 

significant measure of each other’s 

financial obligations; 

(v) Are not married or joined in a civil 

union to anyone else; 

(vi) Are not the domestic partner of 

anyone else; 

(vii) Are not related in a way that, if 

they were of opposite sex, would 

prohibit legal marriage in the U.S. 

jurisdiction in which the domestic 

partnership was formed; and 

(viii) Are willing to certify, if required 

by the agency, that they understand that 

willful falsification of any 

documentation required to establish that 

an individual is in a domestic 

partnership may lead to disciplinary 

action and the recovery of the cost of 

benefits received related to such 

falsification, as well as constitute a 

criminal violation under 18 U.S.C. 1001, 

and that the method for securing such 

certification, if required, shall be 

determined by the agency. 

(3) When an insurable interest is not 

presumed, the employee or Member 

must submit affidavits from one or more 

persons with personal knowledge of the 

named beneficiary’s having an insurable 

interest in the employee or Member. 

The affidavits must set forth the 

relationship, if any, between the named 

beneficiary and the employee or 

Member, the extent to which the named 

beneficiary is dependent on the 

employee or Member, and the reasons 

why the named beneficiary might 

reasonably expect to derive financial 

benefit from the continued life of the 

employee or Member. 

(4) The employee or Member may be 

required to submit documentary 

evidence to establish the named 

beneficiary’s date of birth. 

* * * * * 

[FR Doc. 2011–4791 Filed 3–2–11; 8:45 am] 

BILLING CODE 6325–39–P 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Parts 214 and 299 

[CIS No. 2443–08; DHS Docket No. USCIS– 

2008–0014] 

RIN 1615–AB71 

Registration Requirement for 

Petitioners Seeking to File H–1B 

Petitions on Behalf of Aliens Subject to 

the Numerical Limitations 

AGENCY: U.S. Citizenship and 

Immigration Services, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Homeland 

Security is proposing to amend its 

regulations governing petitions filed on 

behalf of H–1B alien workers subject to 

annual numerical limitations or exempt 

from numerical limitations by virtue of 

having earned a U.S. master’s or higher 

degree (also referred to as the ‘‘65,000 

cap’’ and ‘‘20,000 cap’’ respectively, or 

the ‘‘cap’’ collectively). This rule 

proposes to require employers seeking 

to petition for H–1B workers subject to 

the cap to first file electronic 

registrations with U.S. Citizenship and 

Immigration Services (USCIS) during a 

designated registration period. Under 

this proposed rule, if USCIS anticipates 

that the H–1B cap will not be reached 

by the first day that H–1B petitions may 

be filed for a particular fiscal year, 

USCIS would notify all registered 

employers that they are eligible to file 

H–1B petitions on behalf of the 

beneficiaries named in the selected 

registrations. USCIS would continue to 

accept and select registrations until the 

H–1B cap is reached. On the other hand, 

if USCIS anticipates that the H–1B cap 

will be reached by the first day that H– 

1B petitions may be filed for a particular 

fiscal year, USCIS would close the 

registration before such date and 

randomly select a sufficient number of 

timely filed registrations to meet the 

applicable cap. USCIS proposes to allow 

only those petitioners whose 

registrations are randomly selected to 

file H–1B petitions for the cap-subject 

prospective worker named in the 

registration. USCIS would create a 

waitlist containing some or all of the 

remaining registrations, based on USCIS 

statistical estimates of how many more 

registrations may be needed to fill the 

caps should the initial pool of selected 

registrations fall short. USCIS would 

notify the employers of those 

registrations placed on the waitlist when 

and if they are eligible to file an H–1B 

petition. Employers whose registrations 

were neither randomly selected to file 

petitions nor placed on the waitlist 

would receive notification that they 

were not selected to file petitions in that 

fiscal year. 

USCIS anticipates that this new 

process will reduce administrative 

burdens and associated costs on 

employers who currently must spend 

significant time and resources 

compiling the petition and supporting 

documentation for each potential 

beneficiary without certainty that the 

statutory cap has not been reached. The 

proposed mandatory registration 

process also will alleviate 

administrative burdens on USCIS 

service centers that process H–1B 

petitions. 

DATES: Written comments must be 

submitted on or before May 2, 2011. 

ADDRESSES: You may submit comments, 

identified by DHS Docket No. USCIS– 

2008–0014 by one of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: You may submit comments 

directly to USCIS by e-mail at 

rfs.regs@dhs.gov. Include DHS Docket 

No. USCIS–2008–0014 in the subject 

line of the message. 

• Mail: Chief, Regulatory Products 

Division, U.S. Citizenship and 

Immigration Services, Department of 

Homeland Security, 20 Massachusetts 

Avenue, NW., Washington, DC 20529– 

2020. To ensure proper handling, please 

reference DHS Docket No. USCIS–2008– 

0014 on your correspondence. This 

mailing address may also be used for 

paper, disk, or CD–ROM submissions. 

• Hand Delivery/Courier: U.S. 

Citizenship and Immigration Services, 

Department of Homeland Security, 20 

Massachusetts Avenue, NW., 

Washington, DC 20529–2020. Contact 

Telephone Number is (202) 272–8377. 

FOR FURTHER INFORMATION CONTACT: 

Shelly Sweeney, Adjudications Officer, 

Business Employment Services Team, 

Service Center Operations Directorate, 

U.S. Citizenship and Immigration 

Services, Department of Homeland 

Security, 20 Massachusetts Avenue, 

NW., 2nd Floor, Washington, DC 

20529–2060, telephone (202) 272–8410. 

SUPPLEMENTARY INFORMATION: This 

supplementary information section is 

organized as follows: 

I. Public Participation 

II. Background 

A. Current H–1B Petition Process 

B. H–1B Nonimmigrants Subject to H–1B 

Caps 

C. Current Random Selection Process 

D. Fiscal Year 2009 Filings 

III. Proposed Registration Program 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules 11687 

A. Registration 

1. Announcement of Registration 

Requirement 

2. Information Required 

3. USCIS Acceptance of Registrations 

B. Random Selection of Registrations 

C. H–1B Petition Filing Period After 

Random Selection 

IV. Miscellaneous Amendments 

V. Regulatory Requirements 

A. Regulatory Flexibility Act 

B. Unfunded Mandates Reform Act of 1995 

C. Small Business Regulatory Enforcement 

Fairness Act of 1996 

D. Executive Order 12866 (Regulatory 

Planning and Review) 

E. Executive Order 13132 (Federalism) 

F. Executive Order 12988 (Civil Justice 

Reform) 

G. Paperwork Reduction Act 

I. Public Participation 

Interested persons are invited to 

participate in this rulemaking by 

submitting written data, views, or 

arguments on all aspects of this 

proposed rule. The Department of 

Homeland Security (DHS) and U.S. 

Citizenship and Immigration Services 

(USCIS) also invite comments that relate 

to the economic, environmental, or 

federalism effects that might result from 

this proposed rule. Comments that will 

provide the most assistance to DHS and 

USCIS will reference a specific portion 

of the proposed rule, explain the reason 

for any recommended change, and 

include data, information, or authority 

that support such recommended change. 

Instructions: All submissions received 

must include the agency name and DHS 

Docket No. USCIS–2008–0014. All 

comments received will be posted 

without change to http:// 

www.regulations.gov, including any 

personal information provided. 

Docket: For access to the docket to 

read background documents or 

comments received go to http:// 

www.regulations.gov. Submitted 

comments may also be inspected at the 

Regulatory Products Division, U.S. 

Citizenship and Immigration Services, 

Department of Homeland Security, 20 

Massachusetts Avenue, NW., 

Washington, DC 20529–2020. 

II. Background 

Congress has established limits on the 

number of alien workers who may be 

granted H–1B nonimmigrant visas or 

status each fiscal year (commonly 

known as the ‘‘cap’’). See Immigration 

and Nationality Act (INA) section 

214(g), 8 U.S.C. 1184(g). With a few 

exceptions, the total number of aliens 

who may be accorded H–1B 

nonimmigrant status during any fiscal 

year currently may not exceed 65,000. 

See INA sec. 214(g), 8 U.S.C. 1184(g). 

The ability of employers to fill available 

U.S. jobs with aliens otherwise eligible 

for the H–1B nonimmigrant 

classification generally depends on 

when the employers filed petitions for 

such workers and the number of such 

petitions that USCIS has approved to 

allow workers to begin employment 

during the course of the fiscal year (i.e., 

October 1 through September 30). 

USCIS, however, may only accord H–1B 

status in the order in which it receives 

the H–1B petitions. See INA sec. 

214(g)(3), 8 U.S.C. 1184(g)(3). 

USCIS monitors the requests for H–1B 

workers and administers the 

distribution of available H–1B cap 

numbers in light of these limits. The 

first day on which petitioners may file 

H–1B petitions can be as early as six 

months ahead of the projected 

employment start date. See 8 CFR 

214.2(h)(9)(i)(B). During years of high 

demand for H–1B workers, the H–1B 

cap has been reached within days of the 

opening of the H–1B filing period for a 

new fiscal year. In practical terms, this 

means that the cap has been reached on 

or shortly after April 1 (which is six 

months before the start of a new fiscal 

year). For example, in FY 2009, USCIS 

received nearly 163,000 H–1B petitions 

between April 1 and April 7, 2008. See 

e.g. USCIS Update, ‘‘USCIS Releases 

Preliminary Number of H–1B Cap 

Filings,’’ http://www.uscis.gov/files/

article/USCIS%20Update_H1B_

Preliminary%20Count1_10Apr08.pdf. 

To ensure the fair and orderly 

distribution of H–1B cap numbers, 

USCIS employs a random selection 

process after announcing a final date on 

which it will receive H–1B petitions. 

USCIS refers to this day as the ‘‘final 

receipt date.’’ See 8 CFR 

214.2(h)(8)(ii)(B). In past fiscal years, 

the final receipt date has been as early 

as the first day after USCIS began 

accepting H–1B petitions for the new 

fiscal year. In Fiscal Year 2010, due to 

the struggling economy and high 

unemployment rates, the final receipt 

date was not reached until December 21, 

2009. Petitions submitted properly on 

the ‘‘final receipt date’’ undergo a 

random selection process to determine 

which petitions can be processed to 

completion and, if otherwise eligible, 

which beneficiaries are able to receive a 

new H–1B visa number. 

USCIS has found that when it receives 

a significant number of H–1B petitions 

(e.g., 100,000 or more) within the first 

few days of the H–1B filing period, it is 

difficult to handle the volume of 

petitions received in advance of the H– 

1B random selection process. Further, 

after expending USCIS resources to 

ensure proper processing of these 

petitions, USCIS must reject and return 

to the petitioning employer those 

petitions and associated fees that are not 

randomly selected as eligible for an H– 

1B cap number. U.S. employers are also 

adversely affected by the current 

petition process. Preparing and mailing 

H–1B petitions, with the required filing 

fee, can be burdensome and costly for 

employers, if the petition must 

ultimately be returned because the cap 

was reached and the petition was not 

selected in the random selection 

process. 

Requiring U.S. employers to file 

complete H–1B petitions prior to the 

random selection process is not the 

most efficient way to administer the 

allocation of available H–1B cap 

numbers. USCIS is proposing an 

alternate, more streamlined mechanism 

for allocating H–1B cap numbers and 

administering the H–1B cap. 

A. Current H–1B Petition Process 

Before employing an H–1B temporary 

worker, a U.S. employer must first 

obtain a certification from the U.S. 

Department of Labor (DOL) confirming 

that it has filed a Labor Condition 

Application (LCA) in the occupational 

specialty in which the alien will be 

employed. See 8 CFR 214.2(h)(4)(i)(B)(1) 

and 8 CFR 214.2(h)(1)(ii)(B)(3). Upon 

certification of the LCA, the employer 

may then file an H–1B petition with 

USCIS on Form I–129, Petition for a 

Nonimmigrant Worker. Once USCIS 

accepts a properly filed H–1B petition, 

it adjudicates the petition. USCIS will 

notify the petitioner in writing if it 

requires additional information before 

rendering a written decision to approve 

or deny the petition. See 8 CFR 

103.2(a)(8) and 214.2(h)(9) and (10). An 

approved H–1B petition is valid for a 

period of up to three years and may not 

exceed the validity period of the LCA. 

See 8 CFR 214.2(h)(9)(iii)(A)(1). 

Prior to the expiration of the initial 

H–1B status, the petitioning employer 

may apply for an extension of stay, or 

a different employer may petition on 

behalf of the temporary worker. See 8 

CFR 214.2(h)(2)(i)(D), (h)(15)(ii)(B). An 

extension of stay generally may only be 

granted for a period of up to three years, 

such that the total period of the H–1B 

temporary worker’s admission does not 

exceed six years. See INA 214(g)(4), 8 

U.S.C. 1184(g)(4); 8 CFR 

214.2(h)(15)(ii)(B)(1). As with initial H– 

1B petitions, the petitioning employer 

must first obtain a certified LCA from 

DOL before applying for the extension 

of stay. At the end of the six-year 


srobinson on DSKHWCL6B1PROD with PROPOSALS
11688 Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules 

1Certain aliens are exempt from the six-year 

maximum period of admission under sections 

104(c) and 106(a) and (b) of the American 

Competitiveness in the Twenty-First Century Act of 

2000 (AC21), Public Law 106–313, 114 Stat. 1251 

(Oct. 17, 2000). 

2 If the alien was previously employed by a capexempt petitioner and thus never counted against 

the cap, the worker must be counted against the cap 

when switching to an employer that is subject to the 

cap. See INA sec. 214(g)(6), 8 U.S.C. 1184(g)(6). 

period,1 in most cases, the alien must 

change to another nonimmigrant status, 

seek permanent resident status, or 

depart the United States. The alien may 

be eligible for a new six-year maximum 

period of stay in H–1B nonimmigrant 

status if he or she remains outside the 

United States for at least one year. See 

8 CFR 214.2(h)(13)(iii)(A). 

B. H–1B Nonimmigrants Subject to 

H–1B Caps 

Most aliens seeking a new H–1B 

nonimmigrant classification are subject 

to a numerical cap of 65,000 visas each 

fiscal year. Exempt from this 65,000 cap 

are aliens who: (1) Are employed at, or 

have received an offer of employment 

from, an institution of higher education, 

or a related or affiliated nonprofit entity; 

(2) are employed at, or have received an 

offer of employment from, a nonprofit 

research organization or a governmental 

research organization; or (3) have earned 

a master’s or higher degree from a U.S. 

institution of higher education. INA sec. 

214(g)(5), 8 U.S.C. 1184(g)(5). The 

exemption for aliens who have attained 

a U.S. master’s degree or higher is 

capped at 20,000 H–1B petitions per 

fiscal year (‘‘20,000 cap’’). See INA sec. 

214(g)(5)(C), 8 U.S.C. 1184(g)(5)(C). 

The spouses and children of H–1B 

nonimmigrants, classified as H–4 

nonimmigrants, do not count toward the 

65,000 and 20,000 caps. See INA sec. 

214(g)(2), 8 U.S.C. 1184(g)(2); 8 CFR 

214.2(h)(8)(ii)(A). In addition, USCIS 

does not apply the 65,000 and 20,000 

caps in the following cases: 

• Requests for H–1B petition 

extensions; 

• Requests for extensions of stay in 

the United States; and 

• Petitions filed on behalf of aliens 

who are currently in H–1B 

nonimmigrant status but seek to change 

the terms of current employment, 

change employers,2 or work 

concurrently under a second H–1B 

petition. 

These aliens have already been 

counted towards either the 65,000 or 

20,000 cap in previous years. See INA 

sec. 214(g)(7), 8 U.S.C. 1184(g)(7); 8 CFR 

214.2(h)(8)(ii)(A). 

C. Current Random Selection Process 

To manage the 65,000 and 20,000 

caps, USCIS monitors the number of H– 

1B petitions it receives at each service 

center. The first day on which 

petitioners may file H–1B petitions can 

be as early as six months ahead of the 

projected employment start date. See 8 

CFR 214.2(h)(9)(i)(B). For example, a 

U.S. employer seeking an H–1B worker 

for a job beginning October 1 (the first 

day of the next fiscal year) can file an 

H–1B petition no earlier than April 1 of 

the current fiscal year. Thus, an H–1B 

employer requesting a worker for the 

first day of FY 2012, October 1, 2011, 

would be allowed to file an H–1B 

petition on April 1, 2011. When USCIS 

determines, based on the number of H– 

1B petitions it has received for a cap 

season, that the 65,000 or 20,000 cap 

will be reached, it announces to the 

public the final day on which H–1B 

petitions can be filed for that cap 

season. 

USCIS then randomly selects the 

number of petitions needed to reach the 

H–1B cap. The random selection 

process includes all petitions received 

on the final receipt date. USCIS makes 

projections on the number of petitions 

necessary to achieve the numerical limit 

of approvals, taking into account 

historical data related to approvals, 

denials, revocations, and other relevant 

factors. See 8 CFR 214.2(h)(8)(ii)(B). 

USCIS then randomly selects 

approximately 15–20% over the regular 

cap number of 65,000 and 

approximately 5–10% over the master’s 

degree cap number of 20,000. 

If USCIS receives sufficient H–1B 

petitions to reach the 65,000 and 20,000 

caps for the upcoming fiscal year within 

the first five business days, USCIS 

randomly selects from all H–1B 

petitions filed within the first five 

business days, beginning first with H– 

1B petitions subject to the 20,000 cap. 

Id. Once the random selection process 

for the 20,000 cap is complete, USCIS 

conducts the random selection process 

for the 65,000 cap. Once the random 

selection process for the 65,000 cap is 

complete, USCIS rejects all remaining 

H–1B petitions, including those not 

selected during one of the random 

selections. USCIS also rejects all H–1B 

petitions received after the final receipt 

date. See 8 CFR 214.2(h)(8)(ii)(D). 

D. Current Allocation Process 

This proposed rule is designed to 

alleviate many of the difficulties and 

inefficiencies stemming from the 

current H–1B allocation process and to 

simplify the allocation of available H– 

1B cap numbers. The registration 

requirement also will aid USCIS in the 

administrative front-end processing of 

cap-subject H–1B petitions. 

For example, during the first five 

business days of filing for FY 2009, 

USCIS received approximately 163,000 

H–1B petitions, well in excess of the 

available H–1B cap numbers. Some of 

the front-end processing activities 

associated with handling this 

exceptionally high volume of receipts 

include, but are not limited to, opening 

and sorting mail, identifying properly 

filed petitions, placing petitions through 

the random selection process, notifying 

petitioners of selected petitions, 

receipting fees and entering data for 

selected petitions, and returning all of 

the nonselected and improperly filed 

petitions with associated fees. 

Since USCIS first created the random 

selection process in 2005, it has twice 

received significant numbers of H–1B 

petitions that exceeded the 65,000 and 

20,000 caps on April 1, the first day the 

petitions could be filed for a new fiscal 

year. Petitioning employers rushed to 

file H–1B petitions for FY 2008, because 

in the previous fiscal year, USCIS 

reached the H–1B cap on the second 

filing day. See USCIS Update, ‘‘USCIS 

Updates Count of FY 2008 H–1B Cap 

Filings,’’ http://www.uscis.gov/files/ 

pressrelease/ 

H1Bfy08CapUpdate041007.pdf. Many 

petitioning employers apparently 

anticipated a similar shortage of H–1B 

cap numbers for FY 2009 and, as a 

result, hurried to file the petitions to 

ensure USCIS received them at the start 

of the filing period. In an effort to 

relieve some of the burdens associated 

with handling the huge volumes of 

petitions received on the first filing day, 

USCIS amended the regulations 

pertaining to the random selection 

process on March 24, 2008. See 73 FR 

15389. 

Although the current regulations at 8 

CFR 214.2(h)(8)(ii)(B) provide some 

relief by authorizing USCIS to include 

in the random selection process all 

petitions filed during the first five 

business days, USCIS proposes to take 

further measures to alleviate 

administrative burdens and the current 

uncertainty faced by petitioners who 

must prepare and submit H–1B petitions 

for all potential beneficiaries. 

Petitioning employers often expend 

significant time and resources to 

prepare the H–1B petition for 

submission. These resources and costs 

are expended for every potential H–1B 

worker the employer wants to hire, 

regardless of whether the petition will 

ultimately be adjudicated by USCIS. 


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III. Proposed H–1B Registration 

Program 

USCIS proposes to establish a 

mandatory Internet-based electronic 

registration process for U.S. employers 

seeking to file H–1B petitions for alien 

workers subject to either the 65,000 or 

20,000 caps. See proposed 8 CFR 

214.2(h)(8)(ii). The electronic 

registration process would be in 

advance of the start of the period during 

which actual petitions can be filed for 

a new fiscal year (i.e., immediately prior 

to April 1). This process would require 

U.S. employers to register for 

consideration of available H–1B cap 

numbers in advance of having to file 

and receive a certified LCA from the 

DOL. 

This rule also proposes to establish 

processes for selecting registrations. 

Upon notification of selection by USCIS, 

a registrant would proceed to submit the 

LCA to DOL for certification and 

prepare the corresponding H–1B 

petition on behalf of the desired 

beneficiary. USCIS would reject any H– 

1B petition filing that is not based on a 

selected registration. The proposed 

registration requirement, which would 

take approximately 30 minutes to 

complete, is preferable for petitioners 

because selected registrations would 

have a higher probability of receiving an 

H–1B slot before petitioners would be 

required to expend the time and 

expenses necessary to complete H–1B 

petitions. 

The proposed registration process 

would greatly improve the agency’s 

ability to manage the H–1B cap and 

reduce the burden on petitioning 

employers in terms of up-front form 

preparation and filing fee submission. 

Below is a more detailed discussion of 

the proposed registration process and 

petition filing procedures for H–1B 

petitions subject to registration. 

A. Registration 

1. Announcement of the Registration 

Period 

USCIS proposes to establish a 

mandatory Internet-based electronic 

registration process for U.S. employers 

seeking to file H–1B petitions for alien 

workers subject to either the 65,000 or 

20,000 cap. See proposed 8 CFR 

214.2(h)(8)(ii)(B)(1). The entire Internet 

registration process would commence 

each year in advance of the filing period 

for actual petitions. 

The proposed rule would clarify 

USCIS’s discretionary authority to 

temporarily suspend the H–1B 

registration process for any given fiscal 

year or to permanently terminate the 

registration process. USCIS would 

notify the public of any program 

suspension or termination via an update 

on the USCIS public Web site. Proposed 

8 CFR 214.2(h)(8)(ii)(A)(3). The public 

frequently turns to the USCIS Web site 

for information and uses the USCIS Web 

site for general information on 

immigration benefits rules and 

processes, statutes and regulations, 

downloadable immigration forms, 

specific case status information, and 

processing times at the various service 

centers and district offices. Some 

members of the public sign up for e-mail 

alerts that provide the latest information 

posted on the USCIS Web site regarding 

particular applications, petitions, or visa 

classifications. Because of the wide use 

of the USCIS Web site by the public, the 

posting of information on the dates of 

suspension or termination of the 

registration process on the USCIS Web 

site would provide a timelier and more 

efficient method of disseminating such 

information to the public than 

publication of the information in the 

Federal Register. For example, USCIS 

may need to suspend or terminate the 

availability of the registration process in 

the event that Congress greatly increases 

the annual number of H–1B visas that 

USCIS may allocate each fiscal year. 

This rule would afford USCIS the 

flexibility to adapt quickly when 

various contingencies arise while 

providing the public with adequate 

notice of any impact on the registration 

availability. 

Under the proposed registration 

process, each petitioning employer 

would be required to file registrations 

electronically through the USCIS Web 

site (http://www.uscis.gov) in 

accordance with the instructions 

provided. See proposed 

214.2(h)(8)(ii)(B)(1). USCIS proposes to 

establish a registration period that 

would begin no later than in the month 

of March each year, for a minimum 

period of two weeks. USCIS would 

notify the public of the respective start 

and end dates for the registration period 

via the USCIS Web site (http:// 

www.uscis.gov). See proposed 8 CFR 

214.2(h)(8)(ii)(A)(2). All registrations 

would be required to be filed during the 

timeframes announced by USCIS on its 

public Web site. USCIS would not 

accept any registrations filed either 

before or after the close of the specified 

registration period. USCIS invites the 

public to comment on whether the 

proposed start of the registration period 

would be sufficient time for prospective 

petitioners to submit their registrations. 

Note that each annual registration 

period would be treated as separate 

from any earlier registration period. 

Therefore, employers from a previous 

registration period would not be 

automatically entered into a new 

registration period. 

2. Information Required 

This rule proposes that registrations 

must include basic information 

regarding the company and beneficiary: 

(1) The employer’s name, employer 

identification number (EIN), and 

employer’s mailing address; (2) the 

authorized representative’s name, job 

title, and contact information (telephone 

number and e-mail address); (3) the 

beneficiary’s full name, date of birth, 

country of birth, country of citizenship, 

gender and passport number; and (4) 

any additional information requested by 

the registration or USCIS. Proposed 8 

CFR 214.2(h)(8)(ii)(B). USCIS seeks 

public comments on the type of 

information requested and whether the 

list should be expanded or in any way 

changed for U.S. employers. 

USCIS has determined that the 

content noted above is the minimum 

information that USCIS will need to 

identify the prospective H–1B petitioner 

and specific named beneficiary, to 

eliminate duplicate registrations, and to 

match approved and selected 

registrations with subsequently filed 

H–1B petitions. 

3. USCIS Acceptance of Registrations 

USCIS proposes to require U.S. 

employers who choose to participate in 

the registration process to file a single 

registration for each prospective H–1B 

temporary worker they seek to hire. 

Multiple beneficiaries cannot be listed 

on a single registration. In addition, 

petitioners may not file multiple 

registrations for the same H–1B 

beneficiary. USCIS recognizes that, 

because this would be a new system, 

petitioners or their preparers may 

accidentally or unintentionally submit 

more than one registration on behalf of 

a single beneficiary. Therefore, this rule 

proposes that if USCIS receives more 

than one registration for a single H–1B 

beneficiary by the same petitioner, 

USCIS will accept the first valid 

registration and reject any subsequent 

duplicate requests. 

Each U.S. employer who submits a 

properly completed H–1B Cap 

Registration request online will receive 

electronically an automatic notification 

that the registration request has been 

accepted by USCIS (note, acceptance is 

not the same as selection). The 

notification will be in a printable format 

and contain a unique identifying 

number for USCIS tracking and 

recordkeeping purposes. Registering 

employers can retain a hard copy of the 

acceptance notification for their files. 


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USCIS also proposes to assign a unique 

identifying number for each registration, 

which would be included on the 

electronic notification of registration 

acceptance. 

B. Selection of Registrations 

1. If the Number of Registrations Is Less 

Than the 65,000 or 20,000 Cap by 

April 1 

In the event that the number of 

registrations is less than the number of 

available cap numbers before the first 

day that H–1B petition filings may be 

made (e.g., April 1), USCIS would 

announce on its Web site that the 

registration period will remain open 

until such time as USCIS determines it 

has enough registrations to reach the 

cap. If the number of registrations 

received during the initial registration 

period is less than what is needed to 

reach the cap, all registrations accepted 

during that initial period would be 

selected. At such time USCIS believes it 

has enough registrations to meet the 

cap, it will announce the closing of the 

registration period on the USCIS Web 

site and will conduct a random 

selection of all registrations received on 

the last day of the registration period 

(i.e., ‘‘final receipt date’’). U.S. 

employers who receive notification that 

their registrations have been selected 

will be eligible to file an H–1B petition 

on behalf of the prospective H–1B 

worker named in the selected 

registration in accordance with the 

normal filing rules. 

While the rule proposes to permit 

USCIS to keep the registration period 

open in the event that registrations 

remain low during the fiscal year, this 

rule would provide USCIS with the 

authority to close the registration period 

before the close of the fiscal year to 

allow petitioners sufficient time to 

complete and file their petitions and 

USCIS sufficient time to receive and 

process petitions. See proposed 8 CFR 

214.2(h)(8)(ii)(A)(3). 

2. If the Number of Registrations Is More 

Than the 65,000 or 20,000 Cap 

In the event that USCIS would receive 

significantly more registrations than the 

H–1B cap, USCIS would conduct a 

random selection of the registrations 

timely received in a number sufficient 

to meet the 65,000 and 20,000 caps. 

Under such random selection process, 

USCIS would randomly select 

approximately 15–20% over the regular 

cap number of 65,000 and 

approximately 5–10% over the master’s 

cap number of 20,000. The reason for 

selecting a percentage of registrations 

over the cap numbers of 65,000 and 

20,000 is based on historical approval, 

denial and rejection rates, and in order 

to account for a variety of factors, such 

as: Randomly selected registrants that 

ultimately decide not to file an H–1B 

petition; H–1B petitions that are rejected 

as improperly filed or that are denied 

based on ineligibility; petitions that are 

later found revocable; and beneficiaries 

who ultimately decide not to seek an H– 

1B visa or are found ineligible for a visa. 

The random selection process will be 

conducted via a method approved by 

the Office of Immigration Statistics and 

will be similar to the current random, 

computer-generated selection process 

for H–1B petitions outlined at 8 CFR 

214.2(h)(8)(ii)(B). 

After the random selection process is 

complete, USCIS would be authorized 

to create a waitlist of remaining 

registrations. The waitlist of remaining 

registrations would be based on USCIS 

statistical estimates of how many more 

registrations may be needed to fill the 

caps should the pool of selected 

registrants unexpectedly fall short of 

reaching the caps. Waitlisted 

registrations would be randomly sorted 

and given a unique number in 

sequential order. USCIS would notify 

employers that their registrations have 

been placed on the waitlist. As H–1B 

numbers become available, waitlisted 

registrations would be selected so that 

employers can file H–1B petitions in 

accordance with the normal filing rules. 

Employers with registrations that are 

neither randomly selected to file nor 

placed on the waitlist would receive 

notification that their registrations were 

not selected and that they are ineligible 

to file a petition for the applicable fiscal 

year. 

C. Filing of H–1B Petition Following 

Selection 

1. Eligibility To File 

USCIS proposes to accept only capsubject H–1B petitions based on 

selected registrations, and only for the 

H–1B beneficiary named in the original 

registration; others will be rejected. See 

proposed 8 CFR 214.2(h)(8)(ii)(D). No 

substitution of beneficiaries would be 

permitted. USCIS recognizes that 

employer needs often change and 

potential workers may become 

unavailable for a variety of reasons. 

However, USCIS is proposing to limit 

the filing of petitions to the beneficiary 

named on the original registration 

request in an effort to guard against the 

possibility of abuse from the minority of 

employers who might otherwise attempt 

to monopolize petition filing ‘‘slots’’ and 

create an illegitimate secondary market 

for H–1B beneficiaries. Furthermore, an 

employer is prohibited from filing more 

than one H–1B petition in the same 

fiscal year on behalf of the same alien 

if the alien is subject to the cap or is 

exempt from the cap because of having 

earned a master’s degree or higher from 

a U.S. institution of higher education. 

However, if an H–1B petition is denied, 

on a basis other than fraud or 

misrepresentation, the employer may 

file a subsequent H–1B petition on 

behalf of the same alien in the same 

fiscal year, provided that the numerical 

limitation has not been reached or if the 

filing qualifies as exempt from the 

numerical limitation. See 8 CFR 

214.2(h)(2)(i)(G). 

2. Availability of Cap Numbers 

Under the proposed registration and 

selection process, if an H–1B petition is 

otherwise approvable, a petitioner likely 

would be assured, but would not be 

guaranteed, the availability of an H–1B 

cap number under the 65,000 or 20,000 

cap, whichever is applicable. USCIS 

notes that, while it takes every 

conceivable measure to accurately reach 

and not exceed the cap, and while the 

registration system is specifically 

designed to substantially increase the 

public’s assurance that numbers are 

available for selected registrants, USCIS 

cannot guarantee every petitioner that 

an H–1B number will be available for 

the beneficiary at the time of filing their 

petition. As USCIS may accept more 

registrations than the prescribed 

statutory limit for H–1B petitions (to 

account for the variety of factors 

previously referenced, such as drop-outs 

or unapprovable petitions), there still 

exists a possibility that the applicable 

cap may be reached prior to the date 

that a selected registrant has filed a 

petition. This is especially true if, for 

example, a selected registrant does not 

file its petition until well after the filing 

period for petitions has begun (April 

1st). 

Once actual petition filings 

commence on April 1st of each fiscal 

year, USCIS monitors petition receipts 

closely to ensure adherence to the 

numerical caps. As explained, petitions 

filed with USCIS are adjudicated in the 

order they are received and USCIS 

cannot approve any petition that would 

cause it knowingly to exceed the 

statutory caps. However, the overselection of registrations is necessary 

due to factors such as selected 

registrants who do not file Form I–129; 

petitions that are rejected, denied or 

withdrawn; approved petitions that are 

later revoked; and multiple petitions 

filed for the same individual. By overselecting registrations, there is a risk of 

exceeding the statutory caps. Therefore, 


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the challenge is getting close to the 

numerical cap without exceeding it. In 

order to stay within the numerical limits 

of the cap, only 85,000 registrations 

(65,000 plus 20,000) would have to be 

selected from the lottery. However, by 

selecting only 85,000 registrations, 

USCIS will likely be under the 

numerical cap for the reasons stated 

above. Thus, there is a tradeoff between 

cap compliance certainty (being under 

85,001) and cap utilization risk (getting 

close to the numerical cap). 

Nevertheless, the actual number of H– 

1B petition approvals is generally not 

known until the end of the fiscal year 

as a result of petitions being revoked, 

denied or withdrawn throughout the 

year. Although it is possible to exceed 

the numerical cap during the fiscal year 

in December or January, the actual 

number of petitions approved usually 

falls under the numerical cap by August 

or September as a result of ongoing 

revocations. 

3. Filing Time Period 

USCIS proposes that petitioners 

would have not less than 60 days from 

the date of notification of selection 

(‘‘selection notice’’) to properly file a 

completed H–1B petition for the named 

beneficiary. USCIS would state the 

applicable filing deadline in each 

selection notice. Proposed 8 CFR 

214.2(h)(8)(ii)(D)(2). Allowing USCIS to 

specify the filing period in the selection 

notice would give USCIS the flexibility 

to provide filing periods of longer than 

60 days if necessary to accommodate 

processing backlogs. 

If the H–1B petition is filed after the 

filing window closes, USCIS would 

reject the H–1B petition. In other words, 

a selected registrant who does not take 

advantage of the eligibility to file a 

petition on behalf of the named 

beneficiary within the timeframe stated 

on the selection notice would forego 

eligibility to file and, consequently, any 

consideration for an available cap 

number based on that selection notice. 

USCIS is proposing to set a minimum 

60-day filing window to ensure that the 

petitioner has adequate time to prepare 

the H–1B petition package, and, at the 

same time, that USCIS has adequate 

time to determine if a sufficient number 

of petitions have been filed to reach the 

H–1B annual numerical limitation. The 

proposed minimum 60-day filing 

window also would provide USCIS with 

a minimum time period within which it 

would be able to determine the number 

of selected registrants who actually filed 

a petition and whose petition was 

approved by USCIS. Calculating the H– 

1B approval rate during the 60-day 

filing period would allow USCIS to 

assess whether there is a need to resort 

to selecting registrations from the 

waitlisted pool of registrants, thereby 

allowing more registrants in the queue 

to file petitions to reach the cap. 

The proposed minimum 60-day filing 

period in which a selected registrant 

may opt to file a petition on behalf of 

the named beneficiary would be read 

consistently with the existing regulation 

providing that a petitioner may file no 

earlier than six months before the date 

of actual need for the beneficiary’s 

services or training. 8 CFR 214.2 

(h)(9)(i)(B). In other words, while the 

proposed minimum 60-day filing 

window would provide a cutoff date for 

filing a petition, selected registrants 

would still be able to file a petition up 

to six months prior to the date of stated 

need. If, for example, an employer’s 

selection notice dated March 31, 2010 

contains a 60-day filing period, and the 

requested start date is October 1, 2010, 

the petition must be filed no later than 

May 30, 2010 or USCIS will reject the 

petition. Another example is if an 

employer receives the selection notice 

dated May 1, 2010 with a 60-day filing 

period, then the petition must be filed 

no later than June 30, 2010. If the H–1B 

petition is filed on June 30, 2010, the 

requested start date may be no later than 

December 30, 2010, which is six months 

after the filing date. 

4. Submission of Selection Notice With 

H–1B Petition 

The rule also proposes to require that 

selected registrants submit the selection 

notice with the actual H–1B petition at 

the time of filing. See proposed 8 CFR 

214.2(h)(8)(ii)(D)(2). The submission of 

the selection notice is an anti-fraud 

measure to ensure the integrity of the 

H–1B cap number allocation system. 

Further, each selection notice will 

contain a unique identifying number 

and have a machine-readable zone that 

USCIS can use to verify the petitioner 

and intended beneficiary. Submission of 

the selection notice facilitates the 

proper and timely identification of 

petitioners and beneficiaries selected 

during the registration process. Failure 

to submit the selection notice will result 

in the rejection of the H–1B petition and 

the return of the filing fees. 

IV. Miscellaneous Amendments 

This proposed rule also includes 

modifications to the current H–1B cap 

management provisions at 8 CFR 

214.2(h)(8)(ii)(B). The proposed 

amendments do not alter the current H– 

1B cap management process but instead 

clarify the provision so it better reflects 

how USCIS conducts the H–1B random 

selection process. The current cap 

management process is modified by 

running the random lottery on the 

registrations rather than the actual filed 

petition. The proposed system will not 

require the petitions to be returned as 

the lottery will be done prior to filing 

the actual petitions. This proposed rule 

also adds a cross reference to the 

registration process. See proposed 8 

CFR 214.2(h)(8)(ii)(B). 

V. Regulatory Requirements 

A. Unfunded Mandates Reform Act of 

1995 

This rule will not result in the 

expenditure by State, local and Tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

B. Small Business Regulatory 

Enforcement Fairness Act of 1996 

This rule is not a major rule as 

defined by section 804 of the Small 

Business Regulatory Enforcement Act of 

1996. This rule will not result in an 

annual effect on the economy of $100 

million or more; a major increase in 

costs or prices; or significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

on the ability of United States-based 

companies to compete with foreignbased companies in domestic and 

export markets. 

C. Executive Order 12866 

This rule has been designated as 

significant under Executive Order 

12866. Thus, under the Executive Order, 

USCIS has prepared an assessment of 

the benefits and costs anticipated to 

occur as a result of this rule and made 

it available for review in the rulemaking 

docket for this rule at http:// 

www.regulations.gov. The costs and 

benefits of this rule are summarized as 

follows. 

1. Summary 

We estimate the total net savings to 

USCIS and H–1B petitioners from this 

rule is $23,611,393 at a three percent 

discount rate and $19,150,459 at a seven 

percent discount rate over the next ten 

years. 

Over the next 10 years, this rule will 

result in a savings to those businesses 

that file H–1B petitions of $35,826,852 

based on a discount rate of three 

percent, and $29,499,043 based on a 

discount rate of seven percent. 

However, the costs imposed on H–1B 

petitioners as a result of this rule over 


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3Rounded to nearest thousand, except for 

average. 

4The H–1B filing cap was 195,000 in fiscal years 

2002 and 2003. In FY 2005, USCIS exceeded the 

65,000 cap—see full report at http://www.dhs.gov/ 

xoig/assets/mgmtrpts/OIG_05-49_Sep05.pdf http:// 

www.dhs.gov/xoig/assets/mgmtrpts/OIG_05- 

49_Sep05.pdf. 

5As of 18 December 2009. Additionally, since the 

65,000 cap was not met for FY 2010, excess 

approved petitions for the Master’s exemption were 

rolled into the 65,000 cap. 

6A small percentage above the 65,000 or 20,000 

are processed based on historic denial rates in order 

to ensure that all 85,000 spots are used by those 

selected. 

7Percentage based on number of filings; rounded. 

8These years are the dates when the current cap 

numbers were in effect and thus appropriate for 

comparison. 

9FY 2006 was the first year the 20,000 Master’s 

exemption (authorized by the 2004 H–1B Visa 

Reform Act) became operational. 

10As of 18 December 2009. See additional 

information in footnote five. 

the next 10 years will be $11,942,284 at 

the three percent discount rate, and 

$9,833,014 discounted at seven percent. 

Thus the net savings resulting from this 

rule for H–1B petitioners over the next 

10 years will be $23,884,568 at three 

percent and $19,666,029 at seven 

percent. 

In the next 10 years, this rule will 

result in USCIS saving approximately 

$3,520,244 when discounted at three 

percent, and $2,898,492 when 

discounted at seven percent. The total 

USCIS costs over the next 10 years as a 

result of the changes proposed in this 

rule will be $3,793,419 discounted at 

three percent and $3,414,062 at the 

seven percent discount rate. The net 

cost to USCIS over the 10 years 

following this rule, discounted at three 

percent, is $273,175, and discounted at 

seven percent the costs will be 

$515,570. 

The impacts of this rule on employers 

wanting to hire an H–1B worker and the 

government are summarized in the 

following table. 

10-Year cost category 

Net present value 

at 3 percent per 

annum 

Net present value 

at 7 percent per 

annum 

H–1B filer savings .................................................................................................................................... 35,826,852 29,499,043 

H–1B filer cost ......................................................................................................................................... 11,942,284 9,833,014 

Net H–1B filer savings ............................................................................................................................. 23,884,568 19,666,029 

Government savings ................................................................................................................................ 3,520,244 2,898,492 

Government costs .................................................................................................................................... 3,793,419 3,414,062 

Net Government cost ............................................................................................................................... 273,175 515,570 

Total Estimated net savings to the government and H–1B filers ........................................................... $23,611,393 $19,150,459 

2. Recent Petition Filing Volume 3

65,000 cap.4

Fiscal year 2010 5 2009 2008 2007 2006 

Filings ................................................................................... 68,000 133,000 120,000 67,000 74,000 

Accepted 6 ............................................................................ 65,000 74,000 71,000 67,000 74,000 

Approved .............................................................................. 48,000 60,000 64,000 65,000 63,000 

Percent approved 7 .............................................................. 71% 45% 53% 97% 85% 

Fiscal year 2005 2004 2003 2002 9-year 

average 8

Filings ................................................................................... 81,000 73,000 88,000 89,000 88,000 

Accepted .............................................................................. 79,000 71,000 86,000 87,000 75,000 

Approved .............................................................................. 72,000 65,000 78,000 79,000 66,000 

Percent approved ................................................................. 89% 89% 89% 89% 75% 

20,000 Master’s exemption.9

Fiscal year 2010 10 2009 2008 2007 2006 5 year 

average 

Filings ....................................................... 28,000 30,000 21,000 21,000 21,000 24,000 

Accepted .................................................. 27,000 23,000 21,000 21,000 21,000 23,000 

Approved .................................................. 23,000 19,000 19,000 20,000 20,000 20,000 

Percent approved ..................................... 82% 63% 90% 95% 95% 83% 


srobinson on DSKHWCL6B1PROD with PROPOSALS
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11Petition returned and fee refunded. 

12 DOL Form ETA 9035E, Labor Condition 

Application (LCA). The INA directs the Secretary of 

Labor to certify that there are not sufficient workers 

who are able, willing, qualified and available and 

that the employment of an alien will not adversely 

affect the wages and working conditions of workers 

in the United States similarly employed. The 

regulations of the Department of Labor delineate the 

specific rules to be followed for each program that 

requires labor certification from the Secretary of 

Labor. 20 CFR part 655. http:// 

www.foreignlaborcert.doleta.gov/. 

13See United States Department of Labor, Bureau 

of Labor Statistics, Occupational Employment 

Statistics, May 2008 National Occupational 

Employment and Wage Estimates at http:// 

www.bls.gov/oes/2008/may/oes_nat.htm#b11-0000. 

14U.S. Department of Labor, Bureau of Labor 

Statistics, Economic News Release, Table 1. 

Employer costs per hour worked for employee 

compensation and costs as a percent of total 

compensation: Civilian workers, by major 

occupational and industry group, March 2009, 

viewed online at http://www.bls.gov/news.release/ 

ecec.t01.htm. 

15 70,000 + 21,000 (estimated petitions that would 

need to be accepted, based on historic denial rates, 

in order to achieve the 65,000 cap and the 20,000 

master’s exemption cap). 

16 163,000 ¥ 91,000. 

17The average volume in the previous nine years 

for H–1B visa petitions subject to the 65,000 cap 

was 89,000. Since its inception in 2006, average 

filing volume for the 20,000 master’s exemption H– 

Continued 

3. Problems Being Addressed— 

Overwhelmed by Paper Petitions 

The statutory numerical limits on H– 

1B visas have created complications for 

both employers and DHS. On the first 

two filing days for fiscal year 2008, 

April 2 and 3, 2007, USCIS received 

123,000 H–1B petitions subject to the 

65,000 cap or 20,000 Master’s cap 

exemption. This was the first time since 

the random selection process was 

instituted that USCIS received more 

petitions than available cap numbers on 

the first two days. USCIS randomly 

selected 71,000 from those received on 

April 2 and April 3 for processing to fill 

the 65,000 cap and rejected 52,000 

others.11 In 2007, petitions for the 

20,000 U.S. master’s degree or higher 

visas for 2008 were rejected after filings 

reached approximately 21,000. In 2008 

(for fiscal year 2009 workers), 

approximately 163,000 total petitions 

were received during the five day filing 

period. Of those, USCIS accepted 74,000 

and 23,000 to process for both cap 

categories, and rejected 66,000. In 2008, 

the 20,000 master’s degree exempt visas 

were filled by the final receipt date for 

the first time. USCIS believes that the 

master’s degree cap exemption numbers 

will continue to be utilized by 

employers as quickly as the nonmaster’s allotment. For that reason, it is 

proposed that they be made subject to 

registration under this rule. 

In the filing periods to request H–1B 

workers for fiscal years 2008 and 2009, 

an average of 59,000 petitions per year 

were completed and mailed, usually by 

overnight carrier, along with fee 

payments, without even being accepted 

by USCIS for processing. Meanwhile, 

the USCIS service centers involved in 

the petitioning process were 

overwhelmed in those years by the 

quantity of paper petitions received in 

early April until the receipt date was 

closed. Much time and effort was spent 

to open the packages, process the mail, 

receipt the petition for processing, 

check the fee payments, and perform the 

associated tasks. Readying all 

submissions for the random selection 

process requires work by many 

employees. For fiscal years 2008 and 

2009, multiple truckloads of petitions 

were stacked on pallets on loading 

docks, in offices, and in hallways. Then 

only around 60 percent of those 

submitted were processed. The 

logistical problems caused by the huge 

volume of filings result in effort wasted 

on petitions that cannot be processed in 

those years when the demand for H–1B 

visas greatly exceeds the available 

supply. 

4. Changes Proposed—Registration 

This rule proposes to require 

employers to register in a system for 

either the master’s exemption or regular 

cap categories regardless of the 

anticipated employment start date. Once 

the registration period is over, 65,000 

and 20,000 H–1B registrants, as 

applicable, will be randomly selected 

and invited to file an H–1B petition. 

This rule proposes that entries for the 

program must be submitted 

electronically through the USCIS Web 

site in a time frame as established on the 

USCIS Web site. 

5. Benefits 

No Unnecessary Petitions. The main 

benefit that will result from this rule is 

that employers that want to hire an H– 

1B worker will be able to forgo the time, 

effort, and expense associated with the 

preparation of a full H–1B petition, the 

Department of Labor (DOL) Labor 

Condition Application, and all of the 

necessary supporting documentation 

unless USCIS notifies the H–1B 

employer that space exists under the 

cap.12

This rule would result in savings for 

the typical H–1B employer from not 

incurring the expense of preparing an 

H–1B petition when cap space is not 

available. In an analysis of recent H–1B 

filings, USCIS records showed that 93 

percent of H–1B petitions were 

accompanied by a USCIS Form G–28, 

Notice of Entry of Appearance as 

Attorney or Accredited Representative, 

indicating that the petitioner is 

represented. Thus, most H–1B filers pay 

an attorney to prepare and submit their 

Forms I–129. To the extent that such 

expenses are avoided by registering 

under this rule, these avoided costs 

represent a benefit to society. 

The public reporting burden for Form 

I–129 that has been approved by OMB 

under the Paperwork Reduction Act is 

2.75 hours per petition, including the 

time for reviewing instructions, 

completing, and submitting the form. As 

previously discussed, a majority of H– 

1B filers use an attorney to assist with 

the preparation of the I–129. For the 

purpose of this analysis, we will assume 

that the 2.75 hour burden associated 

with completing the I–129 is split 

between an attorney and a staff member 

equivalent to a human resource 

manager. According to the Bureau of 

Labor Statistics, the average hourly 

salary for a lawyer and human resource 

manager are, respectively, $59.98 and 

$49.96.13 For the compensation costs 

required for this analysis, we used the 

average of those two wage rates, $54.97, 

and multiplied it by 1.43 to account for 

the full cost of employee benefits such 

as paid leave, insurance, retirement, 

etc.14 Thus the cost to prepare an H–1B 

petition is approximately $78.61 per 

hour, and the total cost to complete a 

Form I–129 is $216.18 ($78.61 × 2.75). 

This cost estimate is conservative 

because many employers actually 

employ more costly outside counsel 

rather than ‘‘in-house’’ attorneys and 

managers to complete H–1B petitions. 

By requiring a petitioner to register in 

order to be eligible to file, filing volume 

would be capped at around 91,000 

petitions.15 To illustrate the maximum 

possible savings that could result from 

this rule, if the same number of filings 

that were received for FY 2009 workers 

occurs again in the future, filings would 

exceed those accepted by 72,000.16 This 

would result in a possible opportunity 

cost savings for unnecessary petition 

preparation of nearly $15.6 million in 

any year in which such a large number 

of filings are received. (72,000 × 

$216.18). There have been years, 

however, such as fiscal year 2007, 

where the number of petitions received 

did not exceed the number that could be 

processed under the cap. Taking 

account of this variation, once this 

proposed rule is in place, it is expected 

to reduce paper petition filing volumes 

by about 19,000 per year.17 This would 


srobinson on DSKHWCL6B1PROD with PROPOSALS
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1B visas totaled 23,000, resulting in a combined 

average of 112,000 filings annually. Based on these 

past results, recent upward trends in filings, and 

expected demand for H–1B visas in the future, 

USCIS projects that about 110,000 H–1B petitions 

would be filed per year in future years. 

18 19,000 × $216.18 = $4,107,420. 

19United States Postal Service, Express Mail Flat 

Rate Envelope, see http://www.usps.com/prices/ 

express-mail-prices.htm. 

20USCIS projects future petition filing volume of 

approximately 110,000 H–1B petitions annually, 

exceeding the 91,000 to be accepted for processing 

by around 19,000. Savings in largest volume year 

= 72,000/3 × $17.50 = $420,000. Savings in typical 

year of 110,000 projected filings = 19,000/3 × 

$17.50 = $110,833. 

21 $4.1 million preparation savings plus $111,000 

mailing savings. 

22 60/40 = 1.5 petitions received/guarded/sorted/ 

stacked/opened/entered/notified per hour. 

23Per USCIS Service Center Operations—fully 

burdened average rate for CA and VT. 

24 (19,000/1.5 petitions per hour) × $23.58 per 

hour average regular time = $298,680 annual regular 

time savings. 

25http://postcalc.usps.gov/Summary.aspx?m

=2&p=1&o=0&dz=20529&oz=90210&Mailing

Date=1/4/2010&MailingTime=7:09%20

AM&time=2%20days&mt=11&es=106. 

26 19,000 excess petitions × $6.00 per package 

mailing costs = $114,000 shipping savings per year. 

result in average petitioner preparation 

burden savings of $4.1 million per 

year.18 Thus, based on past fiscal years’ 

filing volume, the paperwork burden 

savings resulting from this rule would 

range from zero to $15.6 million, with 

average cost savings of $4.1 million per 

year based on future volume 

projections. 

Reduced Mailing Expenses. While not 

required by regulations, in order to 

ensure receipt of a petition by USCIS, 

H–1B petitioners typically mail their 

petitions via overnight couriers. As 

indicated in the Small Business Impacts 

section below, USCIS estimates that the 

average sponsoring employer files three 

H–1B petitions, and each employer 

would, logically, mail all of its petitions 

in one package. Estimating the average 

mailing cost at $17.50 per mailed 

package,19 this rule would result in cost 

savings for petitioning employers 

ranging from zero to $420,000, with a 

projected annual cost savings of about 

$111,000 per year.20

The 10-year savings to H–1B filers, 

discounted at three and seven percent, 

is summarized in the following table. 

Year Total yearly 

savings 21

Yearly 

discounted 

savings 

3% 

Yearly 

discounted 

savings 

7% 

1 ....................................................................................................................................... 4,200,000 4,077,670 3,925,234 

2 ....................................................................................................................................... 4,200,000 3,958,903 3,668,443 

3 ....................................................................................................................................... 4,200,000 3,843,595 3,428,451 

4 ....................................................................................................................................... 4,200,000 3,731,646 3,204,160 

5 ....................................................................................................................................... 4,200,000 3,622,957 2,994,542 

6 ....................................................................................................................................... 4,200,000 3,517,434 2,798,637 

7 ....................................................................................................................................... 4,200,000 3,414,984 2,615,549 

8 ....................................................................................................................................... 4,200,000 3,315,519 2,444,438 

9 ....................................................................................................................................... 4,200,000 3,218,950 2,284,522 

10 ..................................................................................................................................... 4,200,000 3,125,194 2,135,067 

Total Discounted 

Savings 

$35,826,852 $29,499,043 

Government Benefits. This rule would 

significantly ease the administrative 

burden on USCIS of managing the 

random selection lottery. When 

petitions filed significantly exceed those 

that can be approved, USCIS expends 

funds collected for other application 

types to open the mail and handle H– 

1B petition filings that do not result in 

any fee collections. Over the most recent 

three fiscal years, USCIS received an 

average of almost 133,000 petitions, 

accepted 93,000, and approved an 

average of approximately 78,000. This 

means that 55,000 more were received 

than were approved, and 40,000 more 

than were adjudicated. In addition, for 

fiscal years 2008 and 2009, about 10,700 

petitions were filed for premium 

processing, all of which had to be acted 

on within 15 days of the day of the 

random selection. 

This surge diverts resources away 

from normal duties to receive, unload, 

stack, and open the mail, verify that the 

mail contains H–1B petitions, perform 

minimal data entry, and place a barcode on each petition for use in the 

random selection at a later date—all 

efforts estimated at 40 minutes for each 

petition.22 Further time was spent over 

the following two-week period to 

complete the initial selection; enter 

chosen petitions into the tracking 

system; and return rejected petitions. 

The typical contract clerk that performs 

these steps earns on average $23.58 for 

regular time hours.23 Therefore, this 

piece of the H–1B processing procedure 

needlessly costs USCIS about $298,680 

each year.24

Additional costs were also incurred to 

shift 18,000 Form I–130 filings to 

California from Vermont, so Vermont 

could concentrate on the cap cases 

received. In such high demand and 

volume years, electronic registration 

would decrease the random selection 

preparation time, preclude the 

processing of most fee refunds, and 

reduce overtime costs and lost 

production. USCIS can better utilize this 

time, effort, and other resources to 

adjudicate other benefits. 

Many savings associated with this 

rule are difficult to quantify; however, 

we are able to estimate mailing costs for 

returning unaccepted petitions. We 

estimate mailing costs for rejected H–1B 

filings at $6.00 per mailed package.25

USCIS individually returns unaccepted 

petitions to petitioners. Again, using 

forecast approximations, we can 

calculate shipping savings at $114,000 

annually.26 Combining savings data 

generates a typical total annual savings 

for USCIS of about $412,680. 

Registration would also add a 

qualitative benefit for future filers by 

averting a front log for H–1B petitions 

and allowing more efficient notification 

of the petitioners as to whether they will 

receive a cap number. Petitioners would 

be able to more efficiently plan 

employment and staffing levels, and 

would know whether or not an H–1B 

visa holder would be an option for a 

position vacancy. 

The 10-year savings to USCIS, 

discounted at three and seven percent, 

is summarized in the following table. 


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27 Includes total compensation costs and benefits. 

28According to BLS, the duties for Human 

Resource Assistant are to compile and keep 

personnel records, record data for each employee 

(such as address, weekly earnings, absences, 

amount of sales or production, supervisory reports 

on ability, and date of and reason for termination), 

compile and type reports from employment records, 

file employment records, search employee files, and 

furnish information to authorized persons. USCIS 

believes H–1B Registration will require a similar 

level of skill as these tasks. See http://www.bls.gov/ 

oco/ocos150.htm. Average wage for 2008 is at: 

http://www.bls.gov/oes/2008/may/ 

oes_nat.htm#b11-0000. 

Year Total yearly 

savings 

Yearly 

discounted 

savings3% 

Yearly 

discounted 

savings7% 

1 ....................................................................................................................................... $412,680 $400,660 $385,682 

2 ....................................................................................................................................... 412,680 388,990 360,451 

3 ....................................................................................................................................... 412,680 377,661 336,870 

4 ....................................................................................................................................... 412,680 366,661 314,832 

5 ....................................................................................................................................... 412,680 355,981 294,235 

6 ....................................................................................................................................... 412,680 345,613 274,986 

7 ....................................................................................................................................... 412,680 335,547 256,996 

8 ....................................................................................................................................... 412,680 325,773 240,184 

9 ....................................................................................................................................... 412,680 316,285 224,471 

10 ..................................................................................................................................... 412,680 307,073 209,786 

Total Discounted 

Savings 

3,520,244 2,898,492 

6. Costs 

Government Implementation Costs. 

As part of this rule, USCIS is developing 

an Internet-based system for 

registration. Initial development is 

estimated to cost $800,000, including 

system design, creation of all required 

supporting documentation, hardware 

deployment, and testing the system. 

Initial hardware and equipment costs 

are estimated to be approximately 

$1,400,000. In addition, USCIS 

estimates that initial personnel costs to 

establish the system would require 

$150,000 to fund two positions.27 Total 

first year cost would be $2,350,000. 

Continuing costs would be $200,000 per 

year—$150,000 for the two support 

personnel per year and maintenance 

charges of about $50,000 per year to 

maintain the system. 

The cost to the government over the 

next 10 years, discounted at three and 

seven percent, is summarized in the 

following table. 

Year First year cost Continuing 

cost 

Total yearly 

cost 

Discounted 

cost 

3% 

Discounted 

cost 

7% 

1 ........................................................................................... $2,350,000 $0 $2,350,000 $2,281,553 $2,196,262 

2 ........................................................................................... 0 200,000 200,000 188,519 174,688 

3 ........................................................................................... 0 200,000 200,000 183,028 163,260 

4 ........................................................................................... 0 200,000 200,000 177,697 152,579 

5 ........................................................................................... 0 200,000 200,000 172,522 142,597 

6 ........................................................................................... 0 200,000 200,000 167,497 133,268 

7 ........................................................................................... 0 200,000 200,000 162,618 124,550 

8 ........................................................................................... 0 200,000 200,000 157,882 116,402 

9 ........................................................................................... 0 200,000 200,000 153,283 108,787 

10 ......................................................................................... 0 200,000 200,000 148,819 101,670 

Total 

Discounted 

10-year 

Government 

Cost 

3,793,419 3,414,062 

Registration. USCIS estimates that the 

public reporting burden for H–1B Cap 

Registration using the electronic system 

will average 30 minutes per response, 

including the time for reviewing 

instructions, completing, and 

submitting. Petitioners must file a 

separate registration for each requested 

beneficiary and each beneficiary must 

be named. After the closing date, DHS 

will run a random selection process and 

notify the lottery winners. Upon 

selection in the lottery system, a 

petitioner will be invited to submit a 

Form I–129 for adjudication of an H–1B 

visa. 

While most employers hire an 

attorney to prepare Form I–129 for 

prospective H–1B employees, 

registrations are straightforward and 

should require minimal skills, rather 

than those of an attorney or 

management-level employee. The 

hourly cost for an employer would be 

the compensation costs for the time 

required for a petitioning firm’s 

employee to complete the registration. 

USCIS has reviewed the Bureau of Labor 

Statistics’ Occupational Classifications 

and believes that the job definition for 

a Human Resource Assistant indicates 

that a Human Resource Assistant should 

possess the skills necessary to provide 

the registration information, as the 

duties for that position includes 

compiling information and furnishing 

information to authorized persons. The 

average hourly salary for a Human 

Resource Assistant is $17.70.28 Using a 

multiplier of 1.43 to account for the cost 

of benefits, the costs per hour to prepare 

an H–1B petition is $25.31. Thus, the 


srobinson on DSKHWCL6B1PROD with PROPOSALS
11696 Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules 

29 60/30 = 0.5 hours × $25.31= $12.66. 

30 20 CFR 655.705(c)(1); 20 CFR 655.720; 8 CFR 

214.2(h)(ii)(B)(1). 

31 In the case of a hardship, ETA allows a paper 

request for an LCA to be filed. ETA received only 

one request to file in advance in the past few years 

and it was not filed when the requestor was asked 

for further information. ETA rejects about five LCAs 

per month that are filed on paper without approval 

to file non-electronically. No paper LCA has been 

approved in three years. Thus 100% computer 

ownership is assumed for this analysis. E-mail on 

file with author from Elissa McGovern, ETA, to 

Phillip Elder, USCIS, July 8, 2009, 11 a.m. 32Annual average savings totals $412,680 

discounted at seven percent. 33 $486,086 average annual equivalent costs at 

seven percent discount. 

34 In solving for x, we rounded to the nearest 

whole number. 

35See Small Entity Impact Analysis for the 2010 

Adjustment of USCIS Fee Schedule (Docket USCIS– 

2009–0033). While we acknowledge that the 

analysis provides estimates of size based on entities 

that file both Form I–129 and Form I–140, we still 

believe this to be an appropriate estimate for those 

entities that would be impacted by this proposed 

rule. 

paperwork burden of each registration 

would cost about $12.66.29 USCIS 

understands that some businesses may 

not have an employee with the title of 

‘‘Human Resource Assistant.’’ We 

believe that a fully loaded wage of 

$25.31 per hour is a reasonable proxy 

for the wage of the employee that would 

be required to submit the basic 

information being requested by the 

registration. 

For the purposes of this analysis, we 

assume that a sufficient number of 

petitions would be received each year to 

approve the 85,000 maximum workers, 

or 91,000 per year. Thus, the costs 

added by this rule would range from 

$1.2 million for 91,000 registrants, to 

$2.1 million for 163,000 registrants, and 

average $1.4 million based on the 

110,000 H–1B filings that are projected 

to be filed if registration is not 

implemented under this rule. 

Start-up Costs. We assume that H–1B 

employers would not need to expend 

additional funds to procure computer 

equipment or acquire Internet 

connections. This assumption is based 

on the fact that the Employment and 

Training Administration (ETA) of DOL 

already requires employers to use Webbased electronic filing of Labor 

Condition Applications (LCAs), and an 

approved LCA is a requisite for 

requesting an H–1B employee.30 Thus, 

any establishment that would be 

registering online as proposed by this 

rule must already have a computer and 

access to the Internet.31 Further, the 

costs of learning how to apply for 

registration are considered in the time 

for reviewing instructions in the 

paperwork burden above. Therefore, 

this proposed rule would impose no 

start-up costs on the public. 

The cost to H–1B filers over the next 

10 years, discounted at three and seven 

percent, is summarized in the following 

table. 

Year Total yearly 

cost 

Yearly 

discounted 

cost 

3% 

Yearly 

discounted 

cost 

7% 

1 ....................................................................................................................................... $1,400,000 $1,359,223 $1,308,411 

2 ....................................................................................................................................... 1,400,000 1,319,634 1,222,814 

3 ....................................................................................................................................... 1,400,000 1,281,198 1,142,817 

4 ....................................................................................................................................... 1,400,000 1,243,882 1,068,053 

5 ....................................................................................................................................... 1,400,000 1,207,652 998,181 

6 ....................................................................................................................................... 1,400,000 1,172,478 932,879 

7 ....................................................................................................................................... 1,400,000 1,138,328 871,850 

8 ....................................................................................................................................... 1,400,000 1,105,173 814,813 

9 ....................................................................................................................................... 1,400,000 1,072,983 761,507 

10 ..................................................................................................................................... 1,400,000 1,041,731 711,689 

Total Discounted 

Cost 

11,942,284 9,833,014 

7. Breakeven Threshold 

The cost added by this rule is the cost 

of the extra step now required before a 

petition can be filed—registration. 

Registration would become a fixed cost 

for all potential and actual filers of an 

H–1B petition. Because registration is 

free except for the time required to 

register, the amount of the added fixed 

cost is the opportunity cost incurred by 

registrants to take this new step. 

The breakeven threshold is calculated 

by setting benefits and costs equal and 

solving for the number of petitions. The 

benefits portion equals the cost of 

completing ($216.18) and mailing 

($5.83) a Form I–129 (total $222.01) 

multiplied by the number of petitioners 

over the cap limit (unnecessary 

petitions). This amount represents the 

total amount saved by registrants. The 

next benefit is the amount saved by 

USCIS from not having to deal with 

unnecessary petitions ($412,680).32

Next, we include the cost component. 

Each filer will need to register online at 

a cost of $12.66 each, multiplied by the 

total number of registrants. The final 

component is the additional cost the 

rule imposes on USCIS which totals 

$486,086.33

Therefore, based on costs and the 

conservative estimates for aggregate 

savings for H–1B filers and the 

Government, the benefits to this rule 

exceed the added costs imposed on all 

successful and unsuccessful registrants 

when total registrations equal 96,854, or 

exceed the 91,000 to be accepted for 

processing by 5,854.34

D. Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

(RFA), 5 U.S.C. 601–612, as amended by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996 (Pub. 

L. 104–121), requires Federal agencies 

to consider the potential impact of 

regulations on small businesses, small 

governmental jurisdictions, and small 

organizations during the development of 

their rules. 

Number of small entities to which the 

proposed rule would apply. 

According to USCIS data on the 

participants in the employment based 

visa program, and the Small Business 

Administration (SBA) Small Business 

Size Regulations at 13 CFR part 121, 

almost all, or about 88.6 percent, of the 

petitions requesting an H–1B employee 

would be filed by firms that the size 

definitions indicate are small entities.35

In fiscal year 2009 (the most recent 

breakdown available), forty-two percent 

of petitions approved were for workers 

in computer-related occupations. The 

second and third most numerous 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules 11697 

36See USCIS Characteristics of H–1B Specialty 

Occupations Workers for FY 2009 at http:// 

www.uscis.gov/USCIS/Resources/ 

Reports%20and%20Studies/H-1B/h1b-fy-09- 

characteristics.pdf. 

37Calculated by dividing the total number of H– 

1B employees by the total number of unduplicated 

petitioner Employer Identification Numbers (EIN). 

occupation groups were architecture, 

engineering, and surveying, followed by 

education (primary and secondary 

school teachers and college 

professors).36

USCIS records show that the 

employers who filed H–1B petitions 

hired an average of 2.24 to 4.16 H–1B 

employees in fiscal years 2007 and 

2008.37 Thus, USCIS estimates that the 

average number of H–1B petitions filed 

per employer is about three. Therefore, 

based on projected filings of 110,000 per 

year, it is estimated that around 36,667 

firms that file a petition would be 

affected by this rule, with 32,487 of 

them being classified as small entities 

(110,000/3 = 36,667 × 0.886 = 32,487). 

New Compliance Costs of the 

Proposed Rule. The proposed rule 

would require employers to 

electronically register their intention to 

apply for an H–1B worker for the 

applicable fiscal year. As indicated 

previously, this new requirement would 

add a cost of $12.66 per worker in 

public annual information collection 

costs. The average added cost per 

employer for three employees would 

total $37.98. However, USCIS expects 

that H–1B employers will save money 

due to this rule when the overall costs 

savings are considered, as these H–1B 

employers will no longer be filing 

‘‘unnecessary’’ H–1B petitions. 

Significance of Impact and 

Certification. Guidelines suggested by 

the SBA Office of Advocacy provide 

that, in order for the impact to be 

considered significant, the cost of a 

proposed regulation would have to 

exceed one percent of the gross 

revenues of the entities in a particular 

sector or 5 percent of the labor costs of 

the entities in the sector. The median 

salary for new H–1B workers in the 

information technology industry is 

about $50,000, based on USCIS filings. 

Thus, the costs added by this rule are 

only 0.0003 percent of the salary costs 

for the three workers ($150,000/$37.98 x 

100). The average total revenue of the 

typical H–1B employer is unknown. 

Nonetheless, to exceed one percent of 

annual revenues, sales would have to be 

$3,798 per year or less. Firms with sales 

below $3,798 would be very unlikely to 

hire three employees and incur the 

$37.98 in added costs. USCIS believes 

that the costs of this rulemaking to small 

entities would not exceed one percent of 

annual revenues. Therefore, using both 

average annual labor costs and the 

percentage of the affected entities’ 

annual revenue stream as guidelines 

and considering that this rule is 

expected to generate a net savings to H– 

1B employers, USCIS concludes that 

this rule would not have a significant 

economic impact on a substantial 

number of small entities. For this 

reason, DHS certifies that this rule 

would not have a significant economic 

impact on a substantial number of small 

entities. 

E. Executive Order 13132 

This rule will not have substantial 

direct effects on the States, on the 

relationship between the National 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, it is determined that this 

rule does not have sufficient federalism 

implications to warrant the preparation 

of a federalism summary impact 

statement. 

F. Executive Order 12988 Civil Justice 

Reform 

This rule meets the applicable 

standards in sections 3(a) and 3(b)(2) of 

Executive Order 12988, Civil Justice 

Reform. 

G. Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995, Public Law 104–13, 109 Stat. 

163 (1995), all Departments are required 

to submit to the Office of Management 

and Budget (OMB), for review and 

approval, any reporting or 

recordkeeping requirements inherent in 

a regulatory action. This rule introduces 

a new registration requirement for H–1B 

petitions subject to numerical limits, a 

new information collection under the 

Paperwork Reduction Act. Accordingly, 

this information collection has been 

submitted to OMB for review. 

During the first 60 days, USCIS is 

requesting comments on this 

information collection. USCIS will 

therefore accept comments on this 

information collection until May 2, 

2011. When submitting comments on 

this information collection, your 

comments should address one or more 

of the following four points: 

(1) Evaluate whether the collection of 

information is necessary for the proper 

performance of the agency, including 

whether the information will have 

practical utility; 

(2) Evaluate the accuracy of the 

agency’s estimate of the burden of the 

collection of information, including the 

validity of the methodology and 

assumptions used; 

(3) Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

(4) Minimize the burden of the 

collection of the information on those 

who are to respond, including through 

the use of any and all appropriate 

automated, electronic, mechanical, or 

other technological collection 

techniques or other forms of information 

technology, e.g., permitting electronic 

submission of responses. 

Overview of this information 

collection: 

(1) Type of Information Collection: 

New information collection. 

(2) Title of the Form/Collection: H–1B 

Cap Registration. 

(3) Agency form number, if any, and 

the applicable component of the 

Department of Homeland Security 

sponsoring the collection: No Form 

Number. This information collection is 

via Internet only. U.S. Citizenship and 

Immigration Services. 

(4) Affected public who will be asked 

or required to respond, as well as a brief 

abstract: Primary: Business or other for 

profit. Petitioners seeking to file H–1B 

petitions for alien workers who are 

subject to the numerical limitations 

must timely submit a registration to 

USCIS prior to filing such H–1B 

petitions. By the close of the registration 

period USCIS will randomly select 

timely submitted registrations in a 

number sufficient to meet the numerical 

limit. 

(5) An estimate of the total number of 

respondents and the amount of time 

estimated for an average respondent to 

respond: 110,000 respondents at 30 

minutes (.50) per response. 

(6) An estimate of the total public 

burden (in hours) associated with the 

collection: 55,000 annual burden hours. 

All comments and suggestions or 

questions regarding additional 

information should be directed to the 

Department of Homeland Security, U.S. 

Citizenship and Immigration Services, 

Chief, Regulatory Products Division, 20 

Massachusetts Avenue, NW., 

Washington, DC 20529–2020. 

List of Subjects 

8 CFR Part 214 

Administrative practice and 

procedure, Aliens, Employment, 

Foreign Officials, Health Professions, 

Reporting and recordkeeping 

requirements, Students. 

8 CFR Part 299 

Immigration, Reporting and 

recordkeeping requirements. 


srobinson on DSKHWCL6B1PROD with PROPOSALS
11698 Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules 

Accordingly, parts 214 and 299 of 

chapter I of title 8 of the Code of Federal 

Regulations are proposed to be amended 

as follows: 

PART 214—NONIMMIGRANT CLASSES 

1. The authority citation for part 214 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 

1184, 1186a, 1187, 1221, 1281, 1282, 1301– 

1305 and 1372; sec. 643, Pub. L. 104–208, 

110 Stat. 3009–708; Pub. L. 106–386, 114 

Stat. 1477–1480; section 141 of the Compacts 

of Free Association with the Federated States 

of Micronesia and the Republic of the 

Marshall Islands, and with the Government 

of Palau, 48 U.S.C. 1901 note, and 1931 note, 

respectively; 8 CFR part 2. 

2. Section 214.2 is amended by: 

a. Redesignating paragraph (h)(8)(ii) 

as paragraph (h)(8)(iii); and by 

b. Adding new paragraph (h)(8)(ii). 

The addition reads as follows: 

§ 214.2 Special requirements for 

admission, extension, and maintenance of 

status. 

* * * * * 

(h) * * * 

(8) * * * 

(ii) Registration for H–1B petitions 

subject to numerical limits—(A) 

General. (1) Registration requirement. 

Employers seeking to file H–1B 

petitions for alien workers who are 

subject to the numerical limitations 

under section 214(g)(1)(A) of the Act or 

are exempt from those limitations under 

section 214(g)(5)(C) of the Act must 

register such aliens electronically 

during a designated registration period 

in accordance with this section and the 

registration instructions unless USCIS 

temporarily suspends or terminates the 

registration process, for a particular 

fiscal year, paragraph (h)(8)(ii)(A)(3) of 

this section. USCIS will notify the 

employer in writing of the selection of 

one or more of the employer’s registered 

beneficiaries on whose behalf the 

employer may file an H–1B petition. An 

employer may file an H–1B petition on 

behalf of a registered beneficiary only 

after being notified that the petitioner’s 

registration for that beneficiary has been 

selected. Properly filing an H–1B 

petition following receipt of this 

notification does not guarantee the 

availability of an H–1B number, the 

approval of the petitions, or the 

issuance of an H–1B visa. 

(2) Registration period. The 

registration period will commence prior 

to the earliest date on which petitions 

may be filed for a particular fiscal year, 

as specified in paragraph (h)(9)(i)(B) of 

this section. USCIS will notify the 

public via the USCIS Web site of the 

respective start date for the registration 

period for a particular fiscal year prior 

to the earliest date for filing H–1B 

petitions for such fiscal year as specified 

in paragraph (h)(9)(i)(B) of this section. 

USCIS will monitor registration receipts 

and will notify the public via the USCIS 

Web site at http://www.uscis.gov of the 

end date of the registration period. 

Registrations submitted after the close of 

the registration period will not be 

considered. 

(3) Suspension or termination. USCIS 

may temporarily suspend the 

registration process for a given fiscal 

year or permanently terminate the 

registration process by notice on the 

USCIS Web site at http://www.uscis.gov. 

USCIS will provide such notice at least 

30 days prior to the earliest date for 

filing H–1B petitions. Upon suspension 

or termination of the registration 

process, USCIS will implement the 

procedures described in paragraph 

(h)(8)(iii) of this section for calculating 

the numerical limitation for that fiscal 

year. 

(B) Filing—(1) Electronic registration. 

Any registration must be filed 

electronically with USCIS via its Web 

site at http://www.uscis.gov. No filing 

fee is required for registration. 

Employers are required to provide the 

following information about their 

business and the prospective alien 

beneficiary on the registration: 

(i) The employer’s name, employer 

identification number (EIN), and 

employer’s mailing address; 

(ii) The authorized representative’s 

name, job title, and contact information 

(telephone number and e-mail address); 

(iii) The beneficiary’s full name, date 

of birth, country of birth, country of 

citizenship, gender and passport 

number; and 

(iv) Any additional information 

requested by the registration or USCIS. 

(2) Registering for beneficiaries. 

Employers must file a separate 

registration for each requested 

beneficiary, and each beneficiary must 

be named. Multiple beneficiaries cannot 

be listed in a single registration. Only 

one registration may be submitted by an 

employer for each beneficiary. If USCIS 

receives more than one registration by 

the same employer for the same H–1B 

beneficiary, USCIS will accept only the 

first valid registration submitted and 

reject any duplicate registration 

requests. USCIS will accept more than 

one registration for the same beneficiary 

so long as each registration relates to a 

different employer. 

(3) Confirmation. Employers will 

receive electronic notification that 

USCIS has accepted the registration for 

processing. 

(C) Notifications to file H–1B 

petitions. 

(1) Numerical limitations not reached 

by earliest date on which H–1B petitions 

may be filed. If USCIS determines that 

it has received fewer registrations than 

the numerical limitations as of the 

earliest date on which H–1B petitions 

may be filed, USCIS will notify all 

employers that have properly registered 

their beneficiaries by this date that they 

are eligible to file H–1B petitions on 

behalf of such registered beneficiaries. 

The registration period will remain 

open until USCIS determines that it has 

received sufficient registrations to 

ensure that the numerical limitations 

will not be exceeded for that fiscal year. 

USCIS may, in its discretion, close the 

registration period at an earlier date to 

allow for a sufficient period of time to 

receive and process petitions for that 

fiscal year. USCIS will issue notices of 

selection to file H–1B petitions in the 

order that registrations are received. If 

USCIS anticipates that it will receive 

more registrations than the numerical 

limitations, USCIS will announce a final 

receipt date and the closing of the 

registration period, and will conduct a 

random selection of all registrations 

received on the final receipt date. 

(2) Numerical limitations reached 

before the earliest date on which H–1B 

petitions may be filed for the new fiscal 

year. If USCIS determines that it has 

received more registrations than the 

numerical limitations before the earliest 

date on which H–1B petitions may be 

filed for the new fiscal year, USCIS will 

close the registration period and 

announce such closure via its Web site 

at http://www.uscis.gov. USCIS will 

randomly select timely submitted 

registrations in a number sufficient to 

meet the numerical limit under section 

214(g)(1)(A) of the Act and the 

exemption under section 214(g)(5)(C) of 

the Act. USCIS will: 

(i) Notify all selected employers with 

a selection notice that the employer is 

eligible to file an H–1B petition on 

behalf of the beneficiary named in the 

selection notice. 

(ii) Maintain, in its discretion, a wait 

list of some or all accepted registrations 

that were not initially selected as 

eligible to file an H–1B petition, but 

which may be randomly selected should 

USCIS determine that cap numbers are 

or will likely remain available for a 

particular fiscal year. 

(iii) Notify employers whose 

registrations are on the wait list; 

(iv) Notify a wait-listed employer 

when its registration has been selected 

that it is eligible to file an H–1B petition 

on behalf of the beneficiary named in 

the selection notice. 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules 11699 

(v) Notify employers whose 

registrations are not initially chosen or 

placed on the wait list that they will not 

be eligible to file an H–1B petition for 

the applicable fiscal year. 

(D) H–1B petition filing following 

registration—(1) General. USCIS will 

consider properly filed only those H–1B 

petitions for beneficiaries subject to a 

numerical limitation or the exemption 

under section 214(g)(5)(C) from 

registered employers notified of 

selection and only for those alien 

beneficiaries named in the original 

registration, in addition to meeting all 

other filing requirements. Petitions filed 

by employers whose registrations were 

not selected by USCIS will be rejected. 

(2) Filing. Selected employers must 

file the H–1B petition with required 

supporting documentation and filing 

fees in accordance with the form 

instructions and applicable statutes and 

regulations. H–1B petitions must be 

filed within the time period stated on 

the selection notice and must include 

the selection notice issued under 

paragraph (h)(8)(ii)(C) of this section. 

The filing period on the selection notice 

will not be less than 60 days. Failure to 

meet these requirements will result in 

rejection of the H–1B petition and 

return of the filing fees. 

* * * * * 

PART 299—IMMIGRATION FORMS 

3. The authority citation for part 299 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103; 8 CFR 

part 2. 

4. Section 299.1 is amended by 

adding the entry ‘‘H–1B Cap 

Registration’’ at the end of the table, to 

read as follows: 

§ 299.5 Display of control numbers. 

* * * * * 

Form No. Form title Currently assigned OMB 

control No. 

*******

H–1B Cap Registration. 

Janet Napolitano, 

Secretary. 

[FR Doc. 2011–4731 Filed 3–2–11; 8:45 am] 

BILLING CODE 9111–97–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary of 

Transportation 

14 CFR Chapters I, II, III 

23 CFR Chapters I, II, III 

46 CFR Chapter II 

48 CFR Chapter 12 

49 CFR Chapters I, II, III and V, VI, VII, 

VIII, X, XI 

[Docket No. DOT–OST–2011–0025] 

Notice of Retrospective Review of DOT 

Existing Regulations 

AGENCY: Office of the Secretary of 

Transportation (OST), DOT. 

ACTION: Notice of public meeting and 

tentative agenda; opportunities for 

public participation in review. 

SUMMARY: On February 16, 2011, 

Department of Transportation (DOT) 

published a notice of regulatory review 

of existing DOT regulations. This review 

is in accordance with Executive Order 

13563, ‘‘Improving Regulation and 

Regulatory Review.’’ As part of the 

notice of review, DOT announced it will 

hold a public meeting to discuss and 

consider the public’s comments. This 

notice provides information on how to 

participate in this meeting and 

opportunities for enhanced public 

participation in the review and the 

public meeting. Please note that the 

deadline for registering to speak at the 

public meeting has been extended to 

March 7, 2011. 

DATES:

Deadline to register to attend hearing in 

person/watch Web stream/listen by 

phone—March 7, 2011. 

Deadline to register to speak in person/ 

by phone at the meeting—March 7, 

2011. 

Agenda released on http://regs.dot.gov— 

March 9, 2011. 

Web streaming/call-in info distributed 

to registrants—March 10, 2011. 

Deadline to submit any digital 

presentation materials—March 10, 

2011. 

Public Meeting—March 14, 2011—9:30 

a.m.–4:30 p.m. 

ADDRESSES: 

Public Meeting Location: The public 

meeting will be held in the DOT 

Conference Center’s Media Center, 

located on the ground floor of 1200 New 

Jersey Avenue, SE., Washington, DC 

20590. 

DOT Regulatory Review IdeaScale 

Web site: http:// 

dotregreview.ideascale.com/. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Abdul-Wali, Office of 

Regulation and Enforcement, 

Department of Transportation, (202) 

366–6322; e-mail: 

jennifer.abdulwali@dot.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

On January 18, 2011, President 

Obama issued Executive Order 13563, 

which outlined a plan to improve 

regulation and regulatory review (76 FR 

3821, January 31, 2011). Executive 

Order 13563 reaffirms and builds upon 

governing principles of contemporary 

regulatory review, including Executive 

Order 12866, ‘‘Regulatory Planning and 

Review’’ (58 FR 51735, October 4, 1993), 

by requiring Federal agencies to design 

cost-effective, evidence-based 

regulations that are compatible with 

economic growth, job creation, and 

competitiveness. The President’s plan 

recognizes that these principles should 

not only guide the Federal government’s 

approach to new regulation, but to 

existing ones as well. To that end, 

Executive Order 13563 requires agencies 

to review existing significant rules to 

determine if they are outmoded, 

ineffective, insufficient, or excessively 

burdensome. 

On February 16, 2011, DOT published 

a notice of regulatory review (76 FR 

8940) that invited public comment on 

how to effectively implement Executive 

Order 13563 and set forth a number of 

issues and questions. Our notice stated 

that we would hold a public meeting on 

March 14, 2011. The following section 

provides the procedures for 

participating in the meeting and our 

IdeaScale Web site that can also be used 

to submit comments to DOT. 

Public Meeting Procedures 

1. As stated in our February 16 notice, 

those who wish to make presentations at 

the meeting should submit initial 

comments with sufficient details with 


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