[Federal Register Volume 83, Number 232 (Monday, December 3, 2018)]
[Proposed Rules]
[Pages 62406-62447]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26106]



[[Page 62405]]

Vol. 83

Monday,

No. 232

December 3, 2018

Part II





Department of Homeland Security





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8 CFR Part 214





 Registration Requirement for Petitioners Seeking To File H-1B 
Petitions on Behalf of Cap-Subject Aliens; Proposed Rule

Federal Register / Vol. 83 , No. 232 / Monday, December 3, 2018 / 
Proposed Rules

[[Page 62406]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 214

[CIS No. 2609-17; DHS Docket No. USCIS-2008-0014]
RIN 1615-AB71


Registration Requirement for Petitioners Seeking To File H-1B 
Petitions on Behalf of Cap-Subject Aliens

AGENCY: U.S. Citizenship and Immigration Services, Department of 
Homeland Security.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security (``DHS'' or ``the 
Department'') is proposing to amend its regulations governing petitions 
filed on behalf of H-1B beneficiaries who may be counted toward the 
65,000 visa cap established under the Immigration and Nationality Act 
(``H-1B regular cap'') or beneficiaries with advanced degrees from U.S. 
institutions of higher education who are eligible for an exemption from 
the regular cap (``advanced degree exemption''). The proposed 
amendments would require petitioners seeking to file H-1B petitions 
subject to the regular cap, including those eligible for the advanced 
degree exemption, to first electronically register with U.S. 
Citizenship and Immigration Services (``USCIS'') during a designated 
registration period. USCIS would select from among the registrations 
timely received a sufficient number projected as needed to meet the 
applicable H-1B allocations. DHS also proposes to change the process by 
which USCIS counts H-1B registrations (or petitions, if the 
registration requirement is suspended), by first selecting 
registrations submitted on behalf of all beneficiaries, including those 
eligible for the advanced degree exemption. USCIS would then select 
from the remaining registrations a sufficient number projected as 
needed to reach the advanced degree exemption. Changing the order in 
which USCIS counts these separate allocations would likely increase the 
number of beneficiaries with a master's or higher degree from a U.S. 
institution of higher education to be selected for further processing 
under the H-1B allocations.

DATES: Written comments must be received on or before January 2, 2019.

ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2008-0014, by any one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the website instructions for submitting comments.
     Mail: You may submit written comments directly to USCIS by 
mail by sending correspondence to Samantha Deshommes, Chief, Regulatory 
Coordination Division, Office of Policy and Strategy, U.S. Citizenship 
and Immigration Services, Department of Homeland Security, 20 
Massachusetts Avenue NW, Washington, DC 20529. To ensure proper 
handling, please reference DHS Docket No. USCIS-2008-0014 on your 
correspondence.

FOR FURTHER INFORMATION CONTACT: Elizabeth Buten, Adjudications 
(Policy) Officer, Office of Policy and Strategy, U.S. Citizenship and 
Immigration Services, Department of Homeland Security, 20 Massachusetts 
Avenue NW, Suite 1100, Washington, DC 20529-2140; Telephone (202) 631-
3555.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Public Participation
II. Executive Summary
    A. Purpose and Summary of the Regulatory Action
    B. Legal Authority
    C. Summary of Costs and Benefits
III. Background
    A. The 2011 Proposed Registration Rule
    B. The H-1B Visa Program
    C. H-1B Numerical Cap and Exemptions
    D. Current Selection Process
    E. Challenges With the Current Random Selection Process
IV. Proposed Changes to 8 CFR 214.2(h)(8)
    A. Proposed H-1B Registration Program
    1. Announcement of Registration Period
    2. Registration Requirements
    3. Selection of Registrations
    4. Filing the H-1B Petition Following Selection
    B. Proposed Advanced Degree Exemption Allocation Amendment
    C. Temporary Suspension of the H-1B Registration Process
    D. Severability
    E. Conforming Change to the H-2B Filing Period
    F. Other Technical Amendments
V. Statutory and Regulatory Requirements
    A. Executive Order 12866 and 13563
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act of 1995
    D. Small Business Regulatory Enforcement Fairness Act of 1996
    E. Executive Order 13132 (Federalism)
    F. Executive Order 12988 (Civil Justice Reform)
    G. National Environmental Policy Act (NEPA)
    H. Paperwork Reduction Act

I. Public Participation

    All interested parties are invited to participate in this 
rulemaking by submitting written data, views, comments and/or arguments 
on all aspects of this proposed rule. DHS and 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 USCIS in developing these procedures 
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 must include the agency name and DHS 
Docket No. USCIS-2008-0014 for this rulemaking. Regardless of the 
method used for submitting comments or material, all submissions will 
be posted without change, to the Federal eRulemaking Portal at http://www.regulations.gov, including any personal information provided. 
Therefore, submitting this information makes it public. You may wish to 
consider limiting the amount of personal information that you provide 
in any voluntary public comment submission you make to DHS. DHS may 
withhold information providing comments from public viewing that it 
determines may impact the privacy of an individual or is offensive. For 
additional information, please read the Privacy Act notice that is 
available via the link in the footer of http://www.regulations.gov.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

II. Executive Summary

A. Purpose and Summary of the Regulatory Action

    The H-1B nonimmigrant visa program allows U.S. employers to 
temporarily employ foreign workers in specialty occupations, defined by 
statute as occupations that require the theoretical and practical 
application of a body of highly specialized knowledge and a bachelor's 
or higher degree in the specific specialty, or its equivalent. See INA 
sections 101(a)(15)(H)(i)(b) and 214(i); 8 U.S.C 1101(a)(15)(H)(i)(b) 
and 1184(i). A key goal of the program is to help U.S. employers obtain 
the employees they need to meet their business needs and thus remain 
competitive in the global marketplace.\1\

[[Page 62407]]

Congress intended for the program to, among other things, supplement 
the U.S. workforce that lacked certain types of skilled workers, and 
placed a limit on the number of workers that generally may be issued an 
initial H-1B visa or otherwise provided H-1B status each year. 
Congressional deliberations ahead of the enactment of the American 
Competitiveness and Workforce Improvement Act of 1998 (ACWIA) describe 
the H-1B program's purpose as intended to both fill shortages and 
create opportunities for innovation and expansion.\2\ Congress set the 
current annual cap for the H-1B visa category at 65,000 (``regular 
cap'').\3\ Congress has also set up several cap exemptions. For 
example, workers who will be employed at an institution of higher 
education (as defined in section 101(a) of the Higher Education Act of 
1965, as amended) or a related or affiliated nonprofit entity and 
workers who will be employed at a nonprofit or governmental research 
organization are exempt from the cap. These exemptions are unlimited. 
See INA sec. 214(g)(5)(A)-(B), 8 U.S.C. 1184(g)(5)(A)-(B). Congress 
also provides an exemption for 20,000 new H-1B visas each fiscal year 
for foreign nationals who hold U.S. master's or higher degrees 
(``advanced degree exemption'').\4\
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    \1\ See 144 Cong. Rec. S12741, S12748 (daily ed. Oct. 21, 1998) 
(statement of Sen. Spencer Abraham) (explaining, in discussing the 
goals of the H-1B provisions in the American Competitiveness and 
Workforce Improvement Act that the continued competitiveness of the 
U.S. high-technology sector is ``crucial for [U.S.] economic well-
being as a nation, and for increased economic opportunity for 
American workers'').
    \2\ See id. at S12749 (statement of Sen. Abraham) (``[T]his 
issue [of increasing H-1B visas is not only about shortages, it is 
about opportunities for innovation and expansion.''
    \3\ Up to 6,800 visas are set aside from the 65,000 each fiscal 
year for the H-1B1 visa program under terms of the legislation 
implementing the U.S.-Chile and U.S.-Singapore free trade 
agreements. See INA secs. 101(a)(15)(H)(i)(b1), 214(g)(8), 8 U.S.C. 
1101(a)(15)(H)(i)(b1), 1184(g)(8).
    \4\ See INA section 214(g)(5)(C), 8 U.S.C. 1184(g)(5)(C). In 
this rule, the 20,000 exemptions under section 214(g)(5)(C) from the 
H-1B regular cap also may be referred to as the ``advanced degree 
exemption allocation'' or ``advanced degree exemption numerical 
limitation.''
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    On April 18, 2017, the President issued Executive Order 13788, Buy 
American and Hire American, instructing DHS to ``propose new rules and 
issue new guidance, to supersede or revise previous rules and guidance 
if appropriate, to protect the interests of United States workers in 
the administration of our immigration system.'' Executive Order 13788, 
Buy American and Hire American, 82 FR 18837, sec. 5 (Apr. 18, 2017) 
(``E.O. 13788''). E.O. 13788 specifically mentioned the H-1B program 
and directed DHS and other agencies to ``suggest reforms to help ensure 
that H-1B visas are awarded to the most-skilled or highest-paid 
petition beneficiaries.'' See id. at sec. 5(b).
    In addition, as part of ongoing review of regulations under 
Executive Orders 13563 Improving Regulation and Regulatory Review, 76 
FR 3821 (Jan. 21, 2011) and 13771 Reducing Regulation and Controlling 
Regulatory Costs, 82 FR 9339 (Feb. 3, 2017) and the review of agency's 
compliance with the Paperwork Reduction Act, USCIS determined that it 
could introduce a cost-saving, innovative solution to facilitate the 
filing of H-1B cap-subject petitions and selection of beneficiaries, by 
creating a streamlined process for the identification and selection of 
H-1B beneficiaries for whom H-1B cap subject petitions would be filed. 
This H-1B registration process would reduce the cost, paperwork burden, 
and complexity of participation in the H-1B program because it would 
alleviate the burden of preparing and filing H-1B cap-subject 
petitions, unless the petitioner's registration for a specific 
beneficiary has been selected under the regular cap or advanced degree 
exemption.
    DHS is proposing to require petitioners seeking to file H-1B cap-
subject petitions, which includes petitions subject to the regular cap 
and those asserting eligibility for the advanced degree exemption, to 
first electronically register with USCIS. Under the proposal, DHS would 
establish a designated registration period prior to the date that 
petitions could be filed. At the end of the initial registration 
period, if USCIS determines that it has received more registrations 
than needed to reach the H-1B regular cap during the initial 
registration period for the new fiscal year, USCIS would close the 
registration period for the H-1B regular cap and would randomly select 
a sufficient number of electronic registrations projected as needed to 
meet the cap. H-1B cap-subject petitions could only be filed on behalf 
of a beneficiary whose registration was selected by USCIS.
    Under this proposed rule, if USCIS determines that it has received 
fewer registrations than needed to meet the projected number of 
petitions to reach the H-1B regular cap during the initial registration 
period for the new fiscal year, USCIS would notify all registered 
petitioners that all registrations have been selected and they are 
eligible to file H-1B cap-subject petitions on behalf of those 
beneficiaries named in the registration during the applicable filing 
period. USCIS would notify the registered petitioner of the applicable 
filing period and where to file the H-1B cap-subject petition. In this 
scenario, USCIS would continue to accept and select registrations until 
a sufficient number of registrations have been received to meet the H-
1B regular cap. These registrations would be selected on a rolling 
basis until a sufficient number of registrations have been received 
(e.g., at the end of each day, USCIS would review the number of 
registrations received during that day and determine if sufficient 
numbers remain available to select all of the registrations filed 
during that day). Once USCIS has received more registrations than 
needed to meet the projected number of petitions to reach the H-1B 
regular cap, USCIS would close the registration period for the H-1B 
regular cap and may randomly select a sufficient number of electronic 
registrations from the final registration date to meet the regular H-1B 
cap.
    Unselected registrations would remain on reserve in the system for 
the applicable fiscal year. If USCIS determines that it needs to 
increase the number of registrations projected to meet the regular cap 
or advanced degree exemption, and select additional registrations, 
USCIS would select from among the registrations that are on reserve a 
sufficient number to meet the cap or advanced degree exemption or re-
open the registration period if additional registrations are needed to 
meet the new projected amount. If the registration period will be re-
opened, USCIS would announce the start of the re-opened registration 
period on its website before the start of the re-opened registration 
period. Once a sufficient number of registrations have been received to 
meet the new projected amount to meet the regular cap or advanced 
degree exemption, as applicable, USCIS would close the re-opened 
registration period, identify the new final registration date, and, if 
needed, may randomly select from among registrations received on the 
new final registration date a sufficient number of registrations 
projected to meet the regular cap or advanced degree exemption, as 
applicable.
    DHS proposes this new process to reduce costs for petitioners who 
currently spend significant time and resources preparing petitions and 
supporting documentation for each intended beneficiary without knowing 
whether such petitions will be accepted for processing by USCIS due to 
the statutory allocations. The proposed mandatory registration process 
also would help to alleviate administrative burdens on USCIS service 
centers that process H-1B petitions since USCIS would no longer need to 
physically receive and handle hundreds of thousands of H-1B petitions 
(and the accompanying supporting documentation) before conducting the

[[Page 62408]]

random selection process. The requirement to register electronically is 
in line with the OMB consolidated plan reforming the Executive Branch, 
which favorably references the USCIS e-processing initiative.\5\ 
Finally, H-1B petitioners are accustomed to filing electronically given 
that the Department of Labor (DOL) generally has required the 
electronic filing of Labor Condition Applications (LCAs) in support of 
H-1B petitions since 2005.\6\ USCIS is not proposing a fee for 
registration at this time.
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    \5\ On March 13, 2017, President Trump signed Executive Order 
13781, entitled Comprehensive Plan for Reorganizing the Executive 
Branch, 82 FR 13959 (Mar 16, 2017). The order instructs the Director 
of the Office of Management and Budget (OMB) to propose a plan to 
improve the efficiency, effectiveness, and accountability of the 
Executive Branch. The resulting June 2018 OMB Report, ``Delivering 
Government Solutions in the 21st Century'' recognizes that an 
overarching source of government inefficiency is the outdated 
reliance on paper-based processes and proposes that Federal agencies 
transition to a fully electronic environment. Office of Management 
and Budget, Delivering Government Solutions in the 21st Century: 
Reform Plan and Reorganization Recommendations, available at: 
https://www.whitehouse.gov/wp-content/uploads/2018/06/Government-Reform-and-Reorg-Plan.pdf; see id. at 101-02 (citing USCIS' e-
processing initiative as an example of agency efforts that conform 
to the President's directive). The report notes that Federal 
agencies collectively spend billions of dollars on paper management, 
including the processing, moving, and maintaining of large volumes 
of paper records. The report proposes transitioning from paper-based 
processes to a fully electronic environment across the government.
    \6\ DOL established elective use of electronic filing of LCAs in 
2001. See Labor Condition Applications and Requirements for 
Employers Using Nonimmigrants on H-1B Visas; Implementation of 
Electronic Filing, 66 FR 63298 (Dec. 5, 2001) (final rule) made 
electronic filing of LCAs mandatory in 2005. See Labor Condition 
Applications and Requirements for Employers Using Nonimmigrants on 
H-1B Visas in Specialty Occupations and as Fashion Models, and Labor 
Attestation Requirements for Employers Using Nonimmigrants on H-1B1 
Visas in Specialty Occupations; Filing Procedures, 70 FR 72556, 
(Dec. 5, 2005) ( ) ( )(final rule).
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    Consistent with E.O. 13788's direction to ``suggest reforms to help 
ensure that H-1B visas are awarded to the most-skilled or highest-paid 
petition beneficiaries,'' DHS is also proposing to amend its 
regulations establishing the sequence for considering petitions filed 
on behalf of H-1B beneficiaries who may be counted under the H-1B 
regular cap or under the H-1B advanced degree exemption. Specifically, 
DHS proposes to amend the process by which USCIS selects H-1B petitions 
toward the projected number of petitions needed to reach the regular 
cap and advanced degree exemption. The proposed amendment would change 
the order in which petitions are selected.
    Currently, in years when a sufficient number of petitions needed to 
reach the regular cap or advanced degree exemption are received during 
the first five business days that H-1B cap-subject petitions may be 
filed, USCIS selects qualifying petitions towards the H-1B advanced 
degree exemption first. H-1B cap-subject petitions eligible for the 
advanced degree exemption, but not selected for the advanced degree 
exemption, are then included in the H-1B regular cap random selection 
process. Under the proposed amendments, USCIS would select all 
registrations toward the projected number of petitions needed to meet 
the regular cap first until the regular cap is reached. Once the 
projected number of registrations needed to meet the regular cap is 
reached, USCIS would then select registrations that are eligible for 
the advanced degree exemption until the projected number of 
registrations needed to meet the advanced degree exemption is reached. 
USCIS is proposing to count all registrations toward the H-1B regular 
cap projections first, even in years when a random selection process at 
the end of the initial registration period may not be necessary. In 
such years, USCIS would continue to count all registrations toward the 
H-1B regular cap projections until such time as the projected number of 
registrations needed to reach the H-1B regular cap is met.
    Changing the order in which USCIS selects beneficiaries under these 
separate allocations will likely increase the total number of petitions 
selected under the regular cap for H-1B beneficiaries who possess a 
master's or higher degree from a U.S. institution of higher education 
each fiscal year, particularly in years of high demand for new H-1B 
visas when USCIS is likely to receive a greater number of petitions for 
beneficiaries who qualify for the advanced degree exemption. 
Conversely, this process will likely decrease the total number of 
petitions selected for H-1B beneficiaries with less than a master's 
degree from a U.S. institution of higher education and those with 
master's or higher degrees from foreign institutions of higher 
education. DHS believes that amending its regulations in this manner 
would increase the chances that beneficiaries with a master's degree or 
higher from a U.S. institution of higher education would be selected 
under the H-1B regular cap, which is generally consistent with 
congressional intent in enacting section 214(g)(5)(C) to prioritize 
these workers and the administration's goal to improve policies such 
that H-1B visas are more likely to be awarded to the most-skilled and 
highest paid beneficiaries.

B. Legal Authority

    The Secretary of Homeland Security's authority for these proposed 
regulatory amendments is found in various sections of the Immigration 
and Nationality Act (INA), 8 U.S.C. 1101 et seq., and the Homeland 
Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, 6 
U.S.C. 101 et seq. General authority for issuing the proposed rule is 
found in section 103(a) of the INA, 8 U.S.C. 1103(a), which authorizes 
the Secretary to administer and enforce the immigration and nationality 
laws, as well as section 102 of the HSA, 6 U.S.C. 112, which vests all 
of the functions of DHS in the Secretary and authorizes the Secretary 
to issue regulations. Further authority for the regulatory amendments 
in the proposed rule is found in:
     Section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), which 
authorizes the Secretary to prescribe by regulation the terms and 
conditions of the admission of nonimmigrants;
     Section 214(c) of the INA, 8 U.S.C. 1184(c), which, inter 
alia, authorizes the Secretary to prescribe how an importing employer 
may petition for an H nonimmigrant worker, and the information that an 
importing employer must provide in the petition; and
     Section 214(g) of the INA, 8 U.S.C. 1184(g), which, inter 
alia, prescribes the H-1B and H-2B numerical limitations, various 
exceptions to those limitations, and criteria concerning the order of 
processing H-1B and H-2B petitions.

C. Summary of Costs and Benefits

    DHS is proposing to amend its regulations governing the process for 
petitions filed on behalf of cap-subject H-1B workers. Specifically, 
DHS is proposing to add a registration requirement for petitioners 
seeking to file H-1B cap-subject petitions on behalf of foreign 
workers. Additionally, DHS is proposing to change the order in which H-
1B cap-subject registrations would be selected towards the applicable 
projections needed to meet the annual H-1B regular cap and advanced 
degree exemption in order to increase the odds for selection for H-1B 
beneficiaries who have earned a master's or higher degree from a U.S. 
institution of higher education.
    All petitioners seeking to file an H-1B cap-subject petition would 
have to submit a registration. However, under the proposed process, 
only those whose registrations are selected (termed

[[Page 62409]]

``selected registrant'' \7\ for purposes of this analysis) would be 
eligible to file an H-1B cap-subject petition for those selected 
registrations and during the associated filing period. Therefore, as 
selected registrants under the proposed registration requirement, 
selected petitioners would incur additional opportunity costs of time 
to complete the electronic registration relative to the costs of 
completing and filing the associated H-1B petition, the latter costs 
being unchanged from the current H-1B petitioning process. Conversely, 
those who complete registrations that are unselected because of excess 
demand currently (termed ``unselected registrant'' for purposes of this 
analysis) would experience cost savings relative to the current 
process, as they would no longer have to complete an entire H-1B cap-
subject petition that ultimately does not get selected for USCIS 
processing and adjudication as done by current unselected petitioners.
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    \7\ DHS notes that one entity may submit multiple registrations 
which could result in a mix of selected and unselected outcomes. For 
the purpose of this analysis, the terms ``selected registrant'' and 
``unselected registrant'' refer to the originator of a submission 
based on its outcome and should not be deemed a unilateral label for 
a single entity. Using this terminology it is possible for a single 
entity to experience impacts simultaneously as a selected registrant 
and as an unselected registrant.
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    To estimate the costs of the proposed registration requirement, DHS 
compared the current costs associated with the H-1B petition process to 
the anticipated costs imposed by the additional proposed registration 
requirement. DHS compared costs specifically for selected and 
unselected petitioners because the impact of the proposed registration 
requirement to each population is not the same. Current costs to 
selected petitioners are the sum of filing fees associated with each H-
1B cap-subject petition and the opportunity cost of time to complete 
all associated forms. Current costs to unselected petitioners are only 
the opportunity cost of time to complete forms and cost to mail the 
petition since USCIS returns the H-1B cap-subject petition and filing 
fees to unselected petitioners.
    Under the proposed requirement, the opportunity cost of time 
associated with required registration would be a cost to all 
petitioners (selected and unselected), but those whose registrations 
are not selected would be relieved from the opportunity cost associated 
with completing and mailing an entire H-1B cap-subject petition. 
Therefore, DHS estimates proposed costs of this rule to selected 
petitioners for completing an H-1B cap-subject petition as the sum of 
new registration costs and current costs. DHS estimates that the costs 
of this proposed rule to unselected petitioners would only result from 
the estimated opportunity costs associated with the registration 
requirement. Overall, unselected petitioners would experience a cost 
savings relative to the current H-1B cap-subject petitioning process; 
DHS estimates these cost savings by subtracting new registration costs 
from current costs of preparing an H-1B cap-subject petition. These 
estimated quantitative cost savings would be a benefit that would 
accrue to only those with registrations that were not selected.
    Currently, for selected petitioners the total costs to complete an 
entire H-1B cap-subject petition ranges from $128.4 million to $161.1 
million, depending on who petitioners use to prepare a petition. These 
current costs to complete and file an H-1B cap-subject petition are 
based on a 5 year petition volume average and may differ across sets of 
fiscal years. Current costs are not changing for selected petitioners 
as a result of this proposed registration requirement. Rather, this 
proposed registration requirement would add a new opportunity cost of 
time to selected petitioners who will continue to face current H-1B 
cap-subject petition costs. DHS estimates the added opportunity cost of 
time to selected petitioners under this proposed registration 
requirement would range from $6.2 million to $10.3 million, again 
depending on who petitioners use to submit a registration and prepare a 
petition. Therefore, under the proposed registration requirement, DHS 
estimates an adjusted total cost to complete an entire H-1B cap-subject 
petition would range from $134.7 million to $171.4 million. Since these 
petitioners already file Form I-129, only the registration costs of 
$6.2 million to $10.3 million are considered as new costs.
    Unselected petitioners would experience an overall cost savings, 
despite new opportunity costs of time associated with the proposed 
registration requirement. Currently for unselected petitioners, the 
total cost associated with the H-1B process is $53.5 million to $85.6 
million, depending on who petitioners use to prepare the petition. The 
difference between total current costs for selected and unselected 
petitioners in an annual filing period consists of fees returned to 
unselected petitioners. DHS estimates the total costs to unselected 
petitioners from the registration requirement would range from $6.2 
million to $10.1 million. DHS estimates a cost savings occurs because 
under the proposed requirement unselected petitioners would avoid 
having to file an entire H-1B cap-subject petition and only have to 
submit a registration. Therefore, the difference between current costs 
and proposed costs for unselected petitioners would represent a cost 
savings ranging from $47.3 million to $75.5 million, again depending on 
who petitioners use to submit the registration.
    The government would also benefit from the proposed registration 
provision by no longer having to receive, handle and return large 
numbers of petitions that are currently rejected because of excess 
demand (unselected petitions). These activities would save DHS an 
estimated $1.6 million annually. USCIS would, however, have to expend a 
total of $279,149 in the development of the registration website in the 
first year after this proposed rule would become effective. In 
subsequent years, DHS would incur labor and maintenance costs of 
$200,000 per year. Over ten years, USCIS would incur maintenance costs 
of $2,079,149, resulting in an annualized amount of $225,269 discounted 
at 7 percent and $215,279 discounted at 3 percent, for that timeframe. 
Discounted over 10 years, this provision would result in costs to USCIS 
totaling $1.8 million based on a discount rate of 3 percent and $1.6 
million based on a discount rate of 7 percent.
    The net quantitative impact of this proposed registration 
requirement is an aggregate cost savings to petitioners and to 
government ranging from $42.4 million to $66.5 million annually. Using 
lower bound figures, the net quantitative impact of this proposed 
registration requirement is cost savings of $424.8 million over ten 
years. Discounted over 10 years, these cost savings would be $373.2 
million based on a discount rate of 3 percent and $319.2 million based 
on a discount rate of 7 percent. Using upper bound figures, the net 
quantitative impact of this proposed registration requirement is cost 
savings of $666.4 million over ten years. Discounted over ten years, 
these cost savings would be $585.5 million based on a discount rate of 
3 percent and $500.8 million based on a discount rate of 7 percent.
    DHS notes that these overall cost savings result only in years when 
the demand for registrations and the subsequently filed petitions 
exceeds the number of available visas needed to meet the regular cap 
and the advanced degree exemption. For years where DHS has demand that 
is less than the number of available visas, this proposed registration 
requirement would result in increased costs. For this proposed rule to 
result in net quantitative cost savings, at least 110,182 petitions 
(registrations

[[Page 62410]]

and subsequently filed petitions under the proposed rule) would need to 
be received by USCIS based on lower bound cost estimates. For upper 
bound cost estimates, USCIS would need to receive at least 111,137 
registrations and subsequently filed petitions for this proposed rule 
to result in net quantitative cost savings.
    The proposed provision to change the petition selection process 
would result in an estimated increase in the number of H-1B 
beneficiaries with a master's degree or higher from a U.S. institution 
of higher education selected by 16 percent (or 5,340 workers). This 
increase could result in greater numbers of highly educated workers 
with degrees from U.S. institutions of higher education entering the 
U.S. workforce under the H-1B program.
    Table 1 provides a detailed summary of the proposed changes and 
their impacts.

               Table 1--Summary of Provisions and Impacts
------------------------------------------------------------------------
                                                     Expected benefit of
    Current and proposed      Expected cost of the      the proposed
         provisions            proposed provision         provision
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Currently, all petitioners    Petitioners--         Petitioners--
 who file on behalf of an H-   For current   Petitioners
 1B worker must complete and   selected              whose registrations
 file Form I-129 along with    petitioners, the      are not selected
 a certified DOL Labor         proposed rule would   would have cost
 Condition Application         add an additional     savings that would
 (LCA). For selected           annual opportunity    range from $47.3
 petitioners, the total        cost of time          million to $75.5
 current cost to file and      ranging from $6.2     million from no
 complete an entire H-1B cap-  million to $10.3      longer having to
 subject petition ranges       million, depending    complete and file H-
 from $128.4 million to        on who the            1B cap-subject
 $161.1 million. For           petitioner uses to    petitions along
 unselected petitioners, the   submit the            with mailing costs
 total current cost is $53.5   registration.         despite new
 million to $85.6 million.     Therefore, the        opportunity cost of
DHS is proposing to require    total costs of        time to submit
 all petitioners who seek to   registering and       registration
 hire a cap-subject H-1B       completing and       Government--
 worker to register for each   filing H-1B cap-      USCIS would
 prospective H-1B worker for   subject petitions     save $1.6 million
 whom they seek to file a      would range from      annually in
 cap-subject H-1B petition.    $134.7 million to     processing and
 Only those petitioners        $171.4 million to     return shipping
 whose registrations are       this population       costs, as fewer
 selected may proceed to       annually, depending   petitions will be
 complete and file an H-1B     on the type of        filed with USCIS
 cap-subject petition.         petition preparer.    based on
                               For current   registrations that
                               unselected            are not selected.
                               petitioners they
                               would experience an
                               overall cost
                               savings, though the
                               proposed rule would
                               add an opportunity
                               cost of time
                               ranging from $6.2
                               million to $10.1
                               million to this
                               population
                               annually, depending
                               on who the
                               petitioner uses to
                               submit the
                               registration.
                              Government--
                               The
                               proposed rule would
                               cost the government
                               $279,149 in the
                               first year to
                               develop the
                               registration Web
                               site. In subsequent
                               years, USCIS would
                               incur annual labor
                               and maintenance
                               costs of $200,000.
Under the current H-1B        Petitioners--         Petitioners and
 selection process, if the     The           Government--
 regular cap and advanced      proposed selection    The
 degree exemption are          process could         proposed selection
 reached in the first five     decrease the number   process could
 business days that cap-       of cap-subject H-1B   increase the number
 subject petitions can be      petitions for         of cap-subject H-1B
 filed, USCIS randomly         beneficiaries with    petitions that are
 selects sufficient H-1B       bachelor's degrees,   selected for
 petitions to reach the H-1B   advanced degrees      beneficiaries with
 20,000 advanced degree        from U.S. for-        master's degrees or
 exemption first. Then,        profit                higher from U.S.
 USCIS randomly selects        universities, or      institutions of
 sufficient H-1B petitions     foreign advanced      higher education by
 from the remaining pool of    degrees by up to      an estimated 16
 beneficiaries, including      5,340 workers. This   percent (or 5,340
 those not selected in the     potential decrease    workers) annually.
 advanced degree exemption     could result in       DHS believes the
 to reach the H-1B 65,000      some higher labor     increase in the
 regular cap limit. USCIS      costs to              number of H-1B
 rejects all remaining         petitioners           beneficiaries with
 unselected H-1B cap-subject   assuming that         a master's degree
 petitions.                    beneficiaries with    or higher from a
The proposed process would     bachelor's degrees,   U.S. institution of
 reverse the selection         advanced degrees      higher education
 process so that USCIS would   from U.S. for-        would likely result
 randomly select               profit universities   in more highly
 registrations for the H-1B    or foreign advanced   educated workers
 regular cap first,            degrees are paid      entering the U.S.
 including registrations for   less than and         workforce.
 petitions eligible for the    replaced by
 H-1B advanced degree          beneficiaries with
 exemption. Then USCIS would   master's degrees
 randomly select               from U.S.
 registrations for the H-1B    institutions of
 advanced degree exemption.    higher education.
                               DHS does
                               not anticipate, as
                               a result of the new
                               selection process,
                               petitioning
                               employers would
                               suffer economic
                               harm from the
                               decreased
                               probability of
                               selecting H-1B
                               petitions eligible
                               only under regular
                               cap.
------------------------------------------------------------------------

    This proposed rule would also allow for the H-1B cap and advanced 
degree exemption selections to take place in the event that the 
registration system is inoperable for any reason and needs to be 
suspended. If temporary suspension of the registration system is 
necessary, then the costs and benefits described in this analysis 
resulting from registration for the petitioners and government would 
not apply during any period of temporary suspension. However, the 
proposed selection reversal process would still take place and is 
anticipated to yield a higher proportion of H-1B beneficiaries with a 
master's degree or higher from a U.S. institution of higher education 
being selected.

III. Background

A. The 2011 Proposed Registration Rule

    On March 3, 2011, DHS published a Notice of Proposed Rulemaking 
(NPRM) titled, ``Registration Requirement for Petitioners Seeking to 
File H-1B Petitions on Behalf of Aliens Subject to the Numerical 
Limitations'' (the ``2011 NPRM''). 76 FR 11686 (Mar. 3, 2011). Similar 
to this proposed rule, in the 2011 NPRM DHS proposed to require 
employers seeking to petition for H-1B workers subject to the cap to 
first electronically register with USCIS during a designated 
registration period. DHS sought public comments for a 60-

[[Page 62411]]

day period after the 2011 NPRM published, and received a total of 60 
comments but never finalized the rule. Due to the passage of time, DHS, 
through this proposed rule, is superseding and withdrawing the 2011 
NPRM. DHS invites those who commented on the 2011 NPRM to comment on 
this NPRM.

B. The H-1B Visa Program

    The H-1B visa program allows U.S. employers to temporarily hire 
foreign workers to perform services in a specialty occupation, services 
related to a Department of Defense (DOD) cooperative research and 
development project or coproduction project, or services of 
distinguished merit and ability in the field of fashion modeling. See 
INA 101(a)(15)(H)(i)(b), 8 U.S.C. 1101(a)(15)(H)(i)(b); Public Law 101-
649, section 222(a)(2), 104 Stat. 4978 (Nov. 29, 1990); 8 CFR 214.2(h). 
A specialty occupation is defined as an occupation that requires (1) 
theoretical and practical application of a body of highly specialized 
knowledge and (2) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum qualification 
for entry into the occupation in the United States. See INA 214(i)(l), 
8 U.S.C. 1184(i)(l).
    A U.S. employer seeking to temporarily employ a foreign national in 
the United States as an H-1B nonimmigrant may file a petition to obtain 
H-1B nonimmigrant classification on behalf of the individual. Before 
filing an H-1B petition, the petitioner (U.S. employer or agent) must 
first file a Labor Condition Application (LCA) with the U.S. Department 
of Labor (DOL) that covers the proposed dates of H-1B employment.\8\ 
See INA sections 101(a)(15)(H)(i)(b) and 212(n), 8 U.S.C. 
1101(a)(15)(H)(i)(b) and 1182(n); 8 CFR 214.2(h)(1)(ii)(B) and 
(h)(4)(i)(B)(1). After DOL certifies the LCA, the petitioner may then 
file an H-1B petition with USCIS on Form I-129, Petition for a 
Nonimmigrant Worker, seeking approval of H-1B classification for the 
worker (or ``beneficiary''). Once USCIS accepts a properly filed H-1B 
petition, it adjudicates the petition to determine eligibility for the 
benefit sought. USCIS may issue a written request for additional 
information or evidence, if the evidence in the record is insufficient 
to establish eligibility, before rendering a written decision to 
approve or deny the petition. See 8 CFR 103.2(b)(8) and 214.2(h)(9) and 
(10). If the H-1B petition is approved, H-1B classification may be 
authorized for a period of up to three years but may not exceed the 
validity period of the LCA.\9\ See 8 CFR 214.2(h)(9)(iii)(A)(1). 
Subsequently, the original petitioner or a different petitioner may 
petition USCIS to authorize continued or new employment of the worker 
as an H-1B nonimmigrant. Such a renewal petition may include a request 
to extend the worker's stay in H-1B status, and if the worker is in the 
United States and (with limited exceptions) maintaining H-1B status at 
the time the petition is filed, the petition and extension of stay 
request may be approved. See 8 CFR 214.1(c)(1) and (4) and 
214.2(h)(2)(i)(D) and (h)(14) and (15).
---------------------------------------------------------------------------

    \8\ Petitions for H-1B visas relating to Department of Defense 
cooperative research, development, and coproduction projects do not 
require petitioners to file a Labor Condition Application. See 8 CFR 
214.2(h)(4)(vi).
    \9\ H-1B classification relating to Department of Defense 
cooperative research, development, and coproduction projects may be 
authorized for up to 5 years, and they may be renewed for a maximum 
cumulative period of 10 years. See Public Law 101-649, section 
222(a)(2), 104 Stat. 4978 (Nov. 29, 1990); 8 CFR 
214.2(h)(9)(iii)(A)(2).
---------------------------------------------------------------------------

    An extension of stay generally may only be granted for a period of 
up to three years, and the total period of the H-1B worker's admission 
generally cannot 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 petitioner must first obtain a certified LCA from DOL 
that covers the location and proposed dates of H-1B employment before 
filing the petition extension. At the end of the six-year period, with 
limited exceptions,\10\ the H-1B worker must change to another 
nonimmigrant status, seek permanent resident status, or depart the 
United States. The worker may be eligible for a new six-year maximum 
period of stay in H-1B nonimmigrant status if he or she resides and is 
physically present outside the United States for the immediate prior 
year. See 8 CFR 214.2(h)(13)(iii)(A).
---------------------------------------------------------------------------

    \10\ See 8 CFR 214.2(h)(13)(iii)(D) and (E), (h)(13)(v).
---------------------------------------------------------------------------

C. H-1B Numerical Cap and Exemptions

    As noted, Congress has established limits on the number of workers 
who may be granted initial H-1B nonimmigrant visas or status each 
fiscal year (commonly known as the ``cap''). See INA section 214(g), 8 
U.S.C. 1184(g). The total number of workers who may be granted initial 
H-1B nonimmigrant status during any fiscal year currently may not 
exceed 65,000. See INA section 214(g), 8 U.S.C. 1184(g). However, some 
petitions do not count towards the 65,000 cap, including petitions 
filed on behalf of workers who: (1) Are employed or offered employment 
at an U.S. institution of higher education, or a related or affiliated 
nonprofit entity; (2) are employed or offered employment at 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.\11\ See INA section 214(g)(5), 8 U.S.C. 1184(g)(5). 
The annual exemption from the 65,000 cap for H-1B workers for those who 
have earned a qualifying U.S. master's or higher degree may not exceed 
20,000 workers. See INA section 214(g)(5)(C), 8 U.S.C. 1184(g)(5)(C). 
The exemption under INA section 214(g)(5)(C), 8 U.S.C. 1184(g)(5)(C), 
is sometimes referred to as the ``H-1B master's cap'' because it is 
limited to 20,000 workers per year. Additionally, H-1B workers who have 
been previously counted against the cap or advanced degree exemption, 
and who are not eligible for the full six-year maximum period of stay, 
are generally considered to be exempt from the cap. See INA 214(g)(7), 
8 U.S.C. 1184(g)(7). As such, H-1B petitions filed on behalf of such 
workers--including petitions seeking extensions of stay, new employer 
petitions, amended petitions, petitions for concurrent employment with 
a second employer, or those seeking to recapture time from a prior 
admission period--are generally exempt from the cap. See 8 CFR 
214.2(h)(8)(ii)(A). The spouses and minor children of H-1B 
nonimmigrants, who hold H-4 nonimmigrant status, also do not count 
towards the cap. See INA 214(g)(2), 8 U.S.C. 1184(g)(2); 8 CFR 
214.2(h)(8)(ii)(A).
---------------------------------------------------------------------------

    \11\ For purposes of this H-1B numerical cap exemption, the term 
``institution of higher education'' is given the same meaning as 
that set forth in section 101(a) of the Higher Education Act of 
1965, Public Law 89-329, 79 Stat. 1224 (1965), as amended (codified 
at 20 U.S.C. 1001(a) (``Higher Education Act'')).
---------------------------------------------------------------------------

D. Current Selection Process

    Under the current H-1B cap filing and selection process, USCIS 
monitors the number of H-1B petitions it receives at each service 
center in order to manage the H-1B allocations. The first day on which 
petitioners may file H-1B petitions can be as early as six months ahead 
of the actual date of need (commonly referred to as the 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

[[Page 62412]]

first day of fiscal year (FY) 2020, October 1, 2019, would be allowed 
to file an H-1B petition as early as April 1, 2019. Because of this, 
USCIS routinely receives hundreds of thousands of H-1B petitions in 
early April each year and this period is informally recognized as an H-
1B ``cap season.'' Currently, USCIS monitors the number of H-1B cap-
subject petitions received and notifies the public of the date that 
USCIS received a sufficient number of petitions needed to reach the 
numerical limit (the ``final receipt date''). See 8 CFR 
214.2(h)(8)(ii)(B). USCIS then may randomly select from the cap-subject 
petitions received on the final receipt date the projected number of 
petitions needed to reach the limit. If the final receipt date falls on 
any of the first five business days on which cap-subject petitions may 
be filed, USCIS randomly selects the projected number of petitions from 
among all petitions received on any of those five business days. Id.
    USCIS makes projections on the number of petitions it needs to 
select to meet the statutory H-1B allocations by taking into account 
historical data related to approvals, denials, revocations, and other 
relevant factors. See 8 CFR 214.2(h)(8)(ii)(B). Based on these 
projections, USCIS typically selects a quantity of petitions exceeding 
by approximately 10 to 15 percent the regular cap number \12\ and 
approximately 5 to 10 percent more than the 20,000 for the advanced 
degree exemption, although the exact percentage and number of petitions 
may vary depending on the applicable projections for a particular 
fiscal year.
---------------------------------------------------------------------------

    \12\ Congress set the current annual cap for the H-1B category 
at 65,000. Up to 6,800 visas are set aside from the 65,000 each 
fiscal year for the H-1B1 program under the terms of the legislation 
implementing the U.S.-Chile and U.S.-Singapore free trade 
agreements. Unused visas in this group become available for H-1B use 
for the next fiscal year. INA section 214(g)(8), 8 U.S.C. 
1184(g)(8).
---------------------------------------------------------------------------

    If USCIS receives sufficient H-1B petitions to reach the projected 
number of petitions to meet both the regular cap and the advanced 
degree exemption for the upcoming fiscal year within the first five 
business days, USCIS first randomly selects H-1B petitions subject to 
the advanced degree exemption filed within those first five business 
days. Id. Once the random selection process for the advanced degree 
exemption is complete, USCIS then conducts the random selection process 
for the regular cap, which includes the remaining unselected petitions 
filed for, but not selected in, the advanced degree exemption. Once the 
random selection process for the regular cap is complete, USCIS rejects 
all remaining H-1B cap-subject petitions not selected during one of the 
random selections. USCIS also rejects all H-1B cap-subject petitions 
for that fiscal year that are received after the final receipt date. 
See 8 CFR 214.2(h)(8)(ii)(D).
    If a sufficient number of petitions needed to reach the H-1B 
allocations are not received during the first five days that cap-
subject petitions may be filed, USCIS currently counts the regular cap 
and the advanced degree exemption separately. Those petitions filed for 
beneficiaries with a master's or higher degree from a U.S. institution 
of higher education and eligible for the advanced degree exemption are 
counted toward the projections needed to reach the advanced degree 
exemption allocation, and all other cap-subject H-1B petitions are 
counted toward the regular cap. Consistent with 8 CFR 
214.2(h)(8)(ii)(B), once USCIS receives a sufficient number of 
petitions to reach the regular cap or advanced degree exemption, USCIS 
will identify the final receipt date and may randomly select a number 
of petitions needed to reach the projected number from among the 
petitions received on the applicable final receipt date. If the final 
receipt date for the advanced degree exemption is reached before the 
final receipt date for the regular cap, then unselected petitions 
eligible for the advanced degree exemption would be counted toward the 
regular cap projections until the regular cap is met. If the final 
receipt date for the regular cap is reached before the advanced degree 
exemption numerical limitation, then USCIS would continue to receive 
cap-subject petitions eligible for the advanced degree exemption until 
such time as USCIS receives a sufficient number of petitions to reach 
the advanced degree exemption projections.

E. Challenges With the Current Random Selection Process

    USCIS has found that when it receives a significant number of H-1B 
petitions (such as 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. USCIS has received well over 100,000 cap-subject petitions 
within the first few days of the H-1B filing period for the past five 
fiscal years (FYs). Table 2 shows the number of H-1B cap-subject 
petitions USCIS received during the first five business days of the H-
1B filing period in the FY in which the beneficiary was selected.

           Table 2--Total Number of H-1B Cap-Subject Petitions
------------------------------------------------------------------------
                                                            Number of H-
                                                               1B cap-
       Fiscal year in which beneficiary was selected           subject
                                                              petitions
                                                              received
------------------------------------------------------------------------
2017......................................................       198,460
2016......................................................       236,444
2015......................................................       232,973
2014......................................................       172,581
2013......................................................       124,130
------------------------------------------------------------------------
Source: USCIS Service Center Operations (SCOPS), June 2017.

    Further, after expending significant USCIS resources to ensure 
proper intake of these petitions, USCIS must reject and return those 
cap-subject petitions (and associated fees) that are not randomly 
selected. H-1B petitioners may also incur significant expenses 
preparing and filing petitions that are ultimately not selected and are 
rejected by USCIS under the current filing and selection process for 
cap-subject petitions.
    This proposed rule is designed to alleviate many of the 
difficulties and inefficiencies stemming from the current H-1B cap-
subject selection process and to create a more streamlined filing and 
selection process for cap-subject petitions. Requiring petitioners to 
electronically register before filing H-1B cap-subject petitions, and 
randomly selecting these registrations to determine which petitioners 
may file an H-1B cap-subject petition in years of excess demand for H-
1B cap numbers, would allow USCIS to more efficiently administer the 
regular cap and advanced degree exemption numerical limitation. 
Implementing an internet-based electronic H-1B cap registration process 
would reduce the burden on USCIS since it would no longer need to 
physically receive, store, and process hundreds of thousands of cap-
subject H-1B petitions, which in some cases contain hundreds of pages 
of supporting evidence, prior to conducting the random selection 
process. DHS also believes that requiring cap-subject petitioners to 
electronically register for selection would help to avoid repeating 
many of the same issues created by the current paper-based petition 
selection process, namely the physical receipt, processing, and storage 
of possibly hundreds of thousands of paper-based registration requests.
    Some of the front-end processing activities associated with 
handling this exceptionally high volume of petitions include, but are 
not limited to, opening and sorting mail, manually assigning

[[Page 62413]]

unique identifier numbers to each petition for random selection, and 
returning the unselected and improperly filed petitions along with 
associated fees. USCIS also must store the voluminous petition filings 
while front-end processing is completed. USCIS has a fixed amount of 
storage at each service center and the current process causes a massive 
strain on USCIS operations during the filing period due to the 
processing and storage of hundreds of thousands of full petition 
filings.
    Furthermore, preparing and mailing H-1B cap-subject petitions, with 
the required filing fees, can be burdensome and costly for petitioners, 
particularly if the petition must ultimately be returned because the 
numerical limit was reached and the petition was not selected in the 
random selection process. Requiring petitioners to file complete H-1B 
petitions before the random selection process is not the most efficient 
way to administer the random selection process. The current process 
could also have the unintended effect of deterring petitions by 
employers with a bona fide need, but who are reluctant to file given 
the high-cost involved in filing the petition versus the low likelihood 
of selection.
    During years of high demand for H-1B workers, including in recent 
years, the H-1B regular cap and advanced degree exemption allocation 
have been reached within the first few days of the opening of the H-1B 
cap filing period. For example, for FY 2017, USCIS received 198,460 H-
1B petitions during the first five business days that cap-subject 
petitions could be filed, which began April 3, and ended on April 7, 
2017, and a sufficient number of petitions were received to meet the 
projections for both the H-1B regular cap and the advanced degree 
exemption allocations. Although fewer petitions were received for FY 
2017 than FY 2016 during the first five business days that cap-subject 
petitions could be filed, the number of petitions received in FY 2017 
was still much greater than the total projected amount needed to fill 
the regular cap and advanced degree exemption (85,000+x percent).
    DHS proposes to alleviate administrative burdens and the current 
uncertainty faced by petitioners who must prepare and submit complete 
H-1B petitions for all intended beneficiaries. Petitioners often expend 
significant time, money, and resources to prepare the H-1B petition for 
submission. Under the current process, these resources and costs are 
expended for every H-1B worker the employer intends to hire, regardless 
of whether the petition will ultimately be selected toward the H-1B 
regular cap or advanced degree exemption allocation and adjudicated by 
USCIS, or rejected because the H-1B allocations were reached and the 
petition was not randomly selected.
    As discussed in further detail in the Executive Orders 12866 and 
13653 sections of this rule, the proposed rule would reduce the costs 
for employers whose registrations were not selected since they would no 
longer be required to file a complete H-1B cap-subject petition in 
order to be selected in the random selection process. These employers 
would only have to electronically register, which requires fewer 
resources and less time. However, the proposed rule would add some cost 
to those employers whose registrations are selected by imposing costs 
in resources and time to complete the electronic registration, as well 
as the H-1B cap-subject petition. The costs and cost-savings are fully 
discussed in the Executive Orders 12866 and 13653 sections of this 
rule.

IV. Proposed Changes to 8 CFR 214.2(h)(8)

A. Proposed H-1B Registration Program

    DHS proposes to establish a mandatory internet-based electronic 
registration process for petitioners seeking to file H-1B petitions for 
beneficiaries that may be counted under the regular cap or advanced 
degree exemption. See proposed 8 CFR 214.2(h)(8)(iii). The electronic 
registration process would start before April 1, in advance of the 
period during which H-1B petitions can be filed for a new fiscal year. 
A registrant therefore could wait until they have been notified of 
selection before submitting the LCA to DOL for approval and preparing 
the corresponding H-1B petition on behalf of the beneficiary named in 
the selected registration.\13\ DHS is not proposing a fee for 
registration at this time.
---------------------------------------------------------------------------

    \13\ Although the LCA is not required for registration, it is 
the petitioner's obligation to obtain a DOL-certified LCA before the 
deadline to file the Form I-129, which is explained below in greater 
detail.
---------------------------------------------------------------------------

    The registration process would be mandatory, and an H-1B cap-
subject petition would not be considered properly filed unless it is 
based on a valid registration selection for that fiscal year. H-1B cap-
subject petitions that are not properly filed would be rejected.
1. Announcement of the Registration Period
    Under the proposed registration process, each petitioner would be 
required to electronically register through the USCIS website 
(www.uscis.gov) according to the instructions provided on the website. 
See proposed 8 CFR 214.2(h)(8)(iii)(A)(1). DHS proposes to establish a 
registration period that would begin at least fourteen calendar days 
before the first day of filing in each fiscal year. The registration 
period would last for a minimum period of fourteen calendar days. See 
proposed 8 CFR 214.2(h)(8)(iii)(A)(3). USCIS would give the public at 
least 30 days advance notice of the opening of the initial registration 
period for the upcoming fiscal year via the USCIS website 
(www.uscis.gov). USCIS will also separately announce the final 
registration date in any fiscal year on the USCIS website. If USCIS 
determines that it is necessary to re-open the registration period, it 
would announce the start of the re-opened registration period on its 
website before the start of the re-opened registration period. See 
proposed 8 CFR 214.2(h)(8)(iii)(A)(7).
    Because the public regularly uses the USCIS website, USCIS believes 
posting the information on the USCIS website would provide a timelier 
and more efficient method of communication with the public than 
publishing the information in the Federal Register. The public 
frequently turns to the USCIS website for information and routinely 
uses the USCIS website for general information on immigration benefits, 
rules, and processes; applicable statutes and regulations; downloadable 
immigration forms; specific case status information; and processing 
times at the various service centers and district offices. USCIS 
currently notifies the public when it will begin accepting petitions 
subject to the cap for a given fiscal year and when numerical limits 
have been reached through its website; maintaining this practice 
therefore would be consistent with settled expectations. With respect 
to the initial registration period, DHS is also considering announcing 
the opening date of the first registration period in the final rule 
resulting from this proposed rule to allow for maximum visibility for 
the regulated public.
    DHS is proposing that a petitioner could submit a registration 
during the initial registration period only if the requested start date 
for the beneficiary is the first business day for the applicable fiscal 
year. If USCIS keeps the registration period open beyond the initial 
registration period, or determines that it is necessary to re-open the 
registration period, a petitioner could submit a registration with a 
requested start date after the first business day for the applicable 
fiscal year, as long as the

[[Page 62414]]

date of registration is no more than 6 months before the requested 
start date. See proposed 8 CFR 214.2(h)(8)(iii)(A)(4). USCIS proposes 
to limit submission of any additional registrations to within six 
months of the date of need in order to be consistent with existing 
rules at 8 CFR 214.2(h)(9)(i)(B) and allow us the ability to provide a 
filing window for registrations that would permit immediate filing of 
petitions upon selection. This window also would allow USCIS to 
effectively administer the registration process and intake of petitions 
across service centers by providing staggered petition filing windows 
during which a petitioner would be eligible to file the petition, but 
without USCIS having to review requested petition start dates to 
determine that the filing window to be provided to each petitioner 
would not conflict with the 6-month limitation at 8 CFR 
214.2(h)(9)(i)(B).
    USCIS would not accept any registrations either before the opening 
or after the close of the relevant registration period. See proposed 8 
CFR 214.2(h)(8)(iii)(A)(5) and (6). DHS invites the public to comment 
on whether the proposed duration and timing of the registration period 
would provide enough time for prospective petitioners to submit their 
registrations. Petitioners would be asked to provide basic information 
regarding the petitioner and beneficiary when registering. This 
information may include, but is not limited to: (1) The employer's 
name, employer identification number (EIN), and employer's mailing 
address; (2) the employer's authorized representative's name, job 
title, and contact information (telephone number and email address); 
(3) the beneficiary's full name, date of birth, country of birth, 
country of citizenship, gender, and passport number; (4) if the 
beneficiary has obtained a master's or higher degree from a U.S. 
institution of higher education; (5) the employer's attorney or 
accredited representative, if applicable (a Form G-28 should be also 
submitted electronically if this is applicable); and (6) any additional 
basic information requested by the registration system or USCIS. DHS is 
not proposing a separate fee for registration at this time.
    The petitioner would also be required to attest, within the 
registration system, that the contents of each registration are true 
and accurate and that the petitioner intends to employ the beneficiary 
consistent with the registration. DHS recognizes that with the lowering 
of the burden and cost for participating in the H-1B cap selection 
process, there is a possibility that employers will utilize the 
registration system in a way to maximize their likelihood of being able 
to hire the best job candidates. To address potential issues of 
``flooding the system'' with non-meritorious registrations, DHS is 
prohibiting petitioners from submitting more than one registration for 
the same beneficiary during the same fiscal year, and is requiring 
petitioners to make an attestation in the system indicating their 
intent to file an H-1B petition for the beneficiary in the position for 
which the registration is filed. This attestation is intended to ensure 
that each registration is connected with a bona fide job offer and, to 
the extent selected, will result in the filing of an H-1B petition.
    DHS is particularly interested in preventing circumstances where 
petitioners submit large numbers of registrations but never follow up 
with the filing of H-1B petitions for the selected beneficiaries, thus 
in the short term impacting USCIS' H-1B cap projections, as well as 
increasing uncertainty for petitioners whose registrations were not 
selected. Such a scenario would necessarily lead to USCIS having to 
select additional registrations, including, if necessary, by reopening 
the registration period, which could lengthen the period of time 
between the submission of a registration and the adjudication of an H-
1B petition for petitioners whose registrations were not selected 
during the initial lottery. USCIS intends to closely monitor whether 
selected registrations are resulting in the filing of H-1B petitions. 
If USCIS finds that petitioners are registering numerous beneficiaries 
but are not filing petitions for selected beneficiaries at a rate 
indicative of a pattern and practice of abuse of the registration 
system, USCIS would investigate those practices and could hold 
petitioners accountable for not complying with the attestations, 
consistent with its existing authority to prevent and deter fraud and 
abuse. See DHS Delegation 0150.1(II)(I). For example, USCIS may refer 
the matter to a law enforcement agency for further review and possible 
action. See Id;. However, given that the registration system is not 
intended to replace the petition system, DHS will not have a means for 
up-front determining whether a registration is meritorious until after 
it is selected and a petition resulting from such registration is 
properly filed. While DHS will be data mining the registration system 
and monitoring the filing rates of H-1B cap petitioners after the 
system is implemented, as well as employing its authority to 
investigate and sanction instances of fraud and abuse, DHS does not 
currently have a solution for the registration process, or any of its 
filing processes, that guarantees prevention of all non-meritorious 
registrations or filings prior to adjudication. DHS invites comments 
from stakeholders on other ways to enhance the integrity of the 
registration system and reduce the potential for abuse, such as 
enhancements to the accounts system for registration, increased vetting 
of registrants, and any other fraud and abuse prevention measures.
    USCIS believes that the content noted above is the minimum amount 
of information that USCIS would need to identify the prospective H-1B 
petitioner and the named beneficiary, to eliminate duplicate 
registrations, and to match selected registrations with subsequently 
filed H-1B petitions. At least thirty calendar days before opening the 
initial registration period, USCIS would provide specific details on 
what information is required via the USCIS website. USCIS seeks public 
comments on the type and scope of information that should be submitted 
with each registration.
    Note that each annual registration period would be treated as 
separate from any registration period for a prior fiscal year. 
Therefore, registrations from a prior fiscal year would not be 
automatically entered into a new registration period.
2. Registration Requirements
    DHS proposes to require petitioners who participate in the 
registration process to electronically submit a single registration 
relating to each prospective H-1B beneficiary they intend to hire. 
Multiple prospective beneficiaries could not be listed on a single 
registration and a petitioner would be permitted to submit a 
registration relating to a particular H-1B beneficiary only once in any 
given fiscal year. See proposed 8 CFR 214.2(h)(8)(iii)(A)(2). DHS 
believes that prohibiting petitioners from submitting more than one 
registration relating to the same beneficiary for the same fiscal year 
would prevent petitioners from abusing the system. Otherwise, a 
petitioner would be able to gain an unfair advantage by filing multiple 
registrations relating to the same beneficiary but listing different 
job offers when the positions are in fact the same or only very 
slightly different. This rationale is similar to those underpinning the 
limitations in 8 CFR 214.2(h)(2)(i)(G), which generally prevents 
petitioners from filing more than one H-1B cap-subject petition on

[[Page 62415]]

behalf of the same beneficiary in the same fiscal year.\14\
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    \14\ See Petitions Filed on Behalf of H-1B Temporary Workers 
Subject to or Exempt From the Annual Numerical Limitation; Interim 
Rule; 73 FR 15389, 15392 (Mar. 24, 2008) (explaining that USCIS 
wanted to ensure the fair and equitable distribution of cap numbers, 
and that allowing multiple H-1B petitions on behalf of the same 
alien would undermine the purpose of the H-1B numerical cap because 
multiple filings can result in the misallocation of the total 
available cap numbers.)
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    If a petitioner violates the limitation with regard to 
registrations relating to H-1B beneficiaries, all of the registrations 
filed by the petitioner relating to that beneficiary for that fiscal 
year would be considered invalid.
    Each petitioner who submits a properly completed H-1B cap 
registration request online would receive an automatic electronic 
notification that the registration request has been received by USCIS 
(Note: Receipt is not the same as selection). See proposed 8 CFR 
214.2(h)(8)(iii)(B). Petitioners would not be able to edit a 
registration request once it has been received by USCIS. USCIS intends 
to assign a unique identifying number for each registration. The 
automatic electronic registration receipt notification would be in a 
printable format and contain a unique identifying number for USCIS 
tracking and recordkeeping purposes.
3. Selection of Registrations
a. If the Number of Registrations Received Is Fewer Than the Projected 
Number of Petitions Needed To Reach the Regular Cap During the Initial 
Registration Period
    If the number of registrations received during the initial 
registration period is fewer than the number of petitions USCIS 
projects are needed to meet the regular cap, USCIS would announce on 
its website that the registration period would remain open and all 
registrations received during that initial period would be selected. 
See proposed 8 CFR 214.2(h)(8)(iii)(A)(5)(i). When USCIS determines it 
has enough registrations to reach the regular cap, it would announce 
that USCIS will no longer accept registrations under section 
214(g)(1)(A) (the ``final registration date'') on the USCIS website. If 
USCIS determines it necessary, it may conduct a random selection from 
among all of the registrations received on the final registration date. 
Petitioners whose registrations are subject to that random selection 
and who receive notification that their registrations have been 
selected would be eligible to file an H-1B cap-subject petition on 
behalf of the prospective H-1B beneficiary named in the selected 
registration during the applicable filing period. See proposed 8 CFR 
214.2(h)(8)(iii)(C) and (D). USCIS would hold in reserve registrations 
that are not selected. See proposed 8 CFR 214.2(h)(8)(iii)(A)(5)(i).
b. If the Number of Registrations Received Is Sufficient To Reach the 
Projected Number of Petitions for the Regular Cap During the Initial 
Registration Period
    At the end of the initial registration period, if USCIS determines 
that it has received enough registrations in the initial registration 
period to reach the projected number of petitions to meet the regular 
cap, USCIS would conduct a random selection of all of the registrations 
received during the initial registration period. See proposed 8 CFR 
214.2(h)(8)(iii)(A)(5)(ii). Under such process, USCIS would randomly 
select a number of registrations in the regular cap that USCIS projects 
would be sufficient to meet the cap. The number needed to meet the cap 
would be determined by USCIS in advance of each fiscal year's cap 
selection, and would be determined by projections taking into account 
historical approval, denial, revocation, rejection rates, and other 
relevant factors such as the percentage of registrants that ultimately 
decide not to file an H-1B petition. See proposed 8 CFR 
214.2(h)(8)(iii)(E). USCIS would hold in reserve registrations which 
are not selected. See proposed 8 CFR 214.2(h)(8)(iii)(A)(7).
c. Advanced Degree Exemption Selection
    After USCIS has completed selecting registrations for the H-1B 
regular cap, USCIS would determine whether there is a sufficient number 
of remaining eligible registrations to meet the projected number of 
petitions to reach the H-1B advanced degree exemption numerical 
limitation. See proposed 8 CFR 214.2(h)(8)(iii)(A)(6). USCIS is 
proposing to count all registrations toward the H-1B regular cap 
projections first, even in years when a random selection process at the 
end of the initial registration period is unnecessary.
i. Fewer Registrations Than Needed To Reach the Projected Number of 
Petitions To Meet the H-1B Advanced Degree Exemption Numerical 
Limitation
    After USCIS has completed selecting registrations for the H-1B 
regular cap, if USCIS determines that it has received fewer 
registrations than needed to reach the projected number of petitions to 
meet the H-1B advanced degree exemption numerical limitation, USCIS 
will notify all petitioners that have properly registered that each 
registration has been selected. See proposed 8 CFR 
214.2(h)(8)(iii)(A)(6)(i). USCIS will continue to accept registrations 
that may be counted under section 214(g)(5)(C) of the INA until USCIS 
determines that it has received enough registrations as projected to 
meet the H-1B advanced degree exemption numerical limitation. USCIS 
will monitor the number of registrations received and will notify the 
public of the date that USCIS has received the necessary number of 
registrations (the ``final registration date''). The day the news is 
published will not control the applicable final registration date. When 
necessary to ensure the fair and orderly allocation of numbers under 
214(g)(5)(C) of the INA, USCIS may randomly select the remaining number 
of registrations projected as necessary to meet the H-1B advanced 
degree exemption numerical limitation from among the registrations 
properly submitted on the final registration date. This random 
selection would be made by computer-generated selection. USCIS would 
hold in reserve registrations which are not selected.
ii. Sufficient Registrations To Reach the Projected Number of Petitions 
To Meet the H-1B Advanced Degree Exemption Numerical Limitation
    After USCIS has completed selecting registrations for the H-1B 
regular cap, if USCIS determines that it has received enough eligible 
registrations to reach the projected number of petitions to meet the H-
1B advanced degree exemption numerical limitation, USCIS would no 
longer accept registrations that may be counted under section 
214(g)(5)(C) of the INA and would notify the public of the final 
registration date. See proposed 8 CFR 214.2(h)(8)(iii)(A)(6)(ii). USCIS 
would randomly select the number of registrations projected as needed 
to meet the H-1B advanced degree exemption numerical limitation from 
among the remaining registrations that may be counted against the 
advanced degree exemption numerical limitation. This random selection 
would be made by computer-generated selection. USCIS would hold in 
reserve registrations which are not selected.
d. Availability of Cap Numbers
    Once actual petition filings commence on the first day that H-1B 
cap-subject petitions may be filed (that is, April 1 or the next 
business day if April 1 falls on Saturday or Sunday) of each fiscal 
year, USCIS monitors petition receipts closely to ensure adherence to 
the H-1B allocations. By over-selecting registrations, there is a

[[Page 62416]]

risk of exceeding the H-1B allocations; the challenge is to approve a 
sufficient number of petitions that would support issuance of H-1B 
visas or otherwise providing initial H-1B status to up to 85,000 aliens 
each year without exceeding the H-1B allocations. In order to stay 
within the numerical limits of the H-1B allocations, one option would 
be to select only 85,000 registrations (65,000 plus 20,000) in the 
lottery. However, by selecting only 85,000 registrations, USCIS would 
likely permit filing of too few petitions to meet the H-1B allocations 
because some petitions would be rejected, denied, or not filed 
following registration selection. Even if a petition is approved, the 
beneficiary might not apply for or be issued an H-1B visa or otherwise 
obtain H-1B status. Therefore, similar to the way USCIS determines the 
number of petitions it accepts for filing under the current process, 
under this proposed rule USCIS would use historical data to project a 
number above 85,000, and would use yearly projections to determine the 
number of registrations to select for the H-1B regular cap and advanced 
degree exemption allocation. USCIS recognizes that because the costs of 
registration are low relative to the costs of filing a complete 
petition, all of the selected registrants may not ultimately file 
petitions, but USCIS does not have reliable data aside from the 
historical data from past filings to project the number of 
registrations in the first year of implementation. In order to account 
for the changes, USCIS would create a reserve of registrations to pull 
from in the scenario that a sufficient number of selected registrants 
do not file petitions, and more registrations need to be added to the 
selected pool. USCIS is also proposing that it could re-open the 
registration period in the event the reserve of unselected 
registrations is insufficient to fill the H-1B cap projections for a 
given fiscal year.
    Unselected registrations would remain on reserve for the applicable 
fiscal year. If USCIS determines that it needs to increase the number 
of registrations projected to meet the H-1B regular cap or advanced 
degree exemption allocation, and select additional registrations, USCIS 
would select from among the registrations that are on reserve a 
sufficient number to meet it or re-open the registration period if 
additional registrations are needed to meet the new projected amount. 
If the registration period will be re-opened, USCIS would announce the 
start of the re-opened registration period on its website before the 
start of the re-opened registration period. Once a sufficient number of 
registrations have been received to meet the new projected amount to 
meet the H-1B regular cap, or the advanced degree exemption numerical 
limitation, USCIS would close the re-opened registration period, 
identify the new final registration date, and, if necessary to ensure 
the fair and orderly allocation of numbers, may randomly select from 
among registrations received on the new final registration date a 
sufficient number of registrations projected to meet the applicable H-
1B allocations. See proposed 8 CFR 214.2(h)(8)(iii)(A)(7). If USCIS 
determines that the projections for both H-1B allocations fell short of 
the number of petition approvals needed to reach the regular cap and 
advanced degree exemption numerical limitation, such that additional 
registrations towards both are needed, USCIS would first re-open the 
registration for the regular cap, until a sufficient number of 
registrations have been received (counting all registrations) to meet 
the regular cap projections. After a new final registration date for 
the regular cap has been identified, USCIS would re-open the 
registration period for the advanced degree exemption numerical 
limitation.
e. Notification
    USCIS would notify all petitioners with selected registrations that 
the petitioner is eligible to file an H-1B cap-subject petition on 
behalf of the named beneficiary within the designated filing period. 
See proposed 8 CFR 214.2(h)(8)(iii)(C). If the petitioner's 
registration was selected, the notice would indicate a filing location 
and the designated filing period during which the H-1B petition must be 
filed, and provide instructions on how to file. See id.
4. Filing the H-1B Petition Following Selection
a. Eligibility To File
    DHS proposes to accept as properly filed only those H-1B cap-
subject petitions that are based on selected registrations for the 
applicable fiscal year, and only for the specific H-1B beneficiary 
named in the original registration; others would be rejected (if caught 
at intake) or denied (if caught by an officer during an adjudicative 
review of the petition). See proposed 8 CFR 214.2(h)(8)(iii)(D). 
Employers would not be permitted to substitute beneficiaries. DHS 
recognizes that employer needs often change and intended workers may 
become unavailable for a variety of reasons. However, DHS is proposing 
to limit the filing of H-1B cap-subject petitions to the beneficiary 
named on the original registration request in an effort to guard 
against the possibility of abuse by unscrupulous petitioners who might 
otherwise attempt to monopolize petition filing ``slots'' or create an 
illegitimate market related to the sale of selected registrations if 
substitution were permissible.\15\ In addition, allowing substitution 
of beneficiaries could undermine the prohibition on submitting multiple 
registrations for a single beneficiary. If substitutions are 
permissible, a petitioner could submit registrations for multiple 
individuals even though it does not actually intend to file a petition 
for each of the named individuals, but is doing so simply to improve 
its chances for having a sufficient number of selected registrations 
for those beneficiaries it seeks to employ as H-1B nonimmigrants. Thus, 
DHS believes that prohibiting substitution of beneficiaries complements 
the justification for prohibiting multiple registrations for one 
beneficiary, discussed in Section IV.A.2. above, as both would result 
in the potential gaming of the registration system. This restriction 
also is in line with current policy, which does not allow substitution 
of beneficiaries. USCIS may also require that petitioners submit copies 
of the registration information with the Form I-129 so that USCIS may 
verify the registration.
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    \15\ For example, a petitioner could hoard selected 
registrations for itself and substitute beneficiaries, or hoard 
numbers in an attempt to sell selected registration ``slots'' to 
other petitioners for a fee, or to foreign nationals looking to come 
to the U.S. as H-1B nonimmigrants, thereby creating an illicit 
market where selected registrations could be bought and sold as a 
commodity.
---------------------------------------------------------------------------

    Furthermore, a petitioner is prohibited from filing more than one 
H-1B petition in the same fiscal year on behalf of the same beneficiary 
if the beneficiary is subject to either the regular cap or advanced 
degree exemption, see 8 CFR 214.2(h)(2)(i)(G), and likewise would be 
prohibited from filing more than one registration for the same 
beneficiary in the same fiscal year under this proposed rule. See 
proposed 8 CFR 214.2(h)(8)(iii)(A)(2). Under the proposed process, 
USCIS would continue to apply the prohibition on the filing of multiple 
H-1B cap petitions for the same beneficiary. If the petitioner 
(including related entities, such as a parent, company, subsidiary or 
affiliate) files more than one H-1B cap petition for the same 
beneficiary in the same fiscal year, all of the H-1B cap petitions 
filed for that beneficiary by the related entities would be denied or 
revoked, unless the petitioner is able to

[[Page 62417]]

demonstrate a legitimate business need for filing multiple petitions.
b. Filing Time Period
    DHS proposes that petitioners would have a period of at least 60 
days to properly file a completed H-1B cap-subject petition for the 
named beneficiary. USCIS would notify all petitioners with selected 
registrations that the petitioner is eligible to file an H-1B cap-
subject petition on behalf of the named beneficiary within the 
designated filing period. See proposed 8 CFR 214.2(h)(8)(iii)(C) and 
(D). Allowing USCIS to specify the filing period in the selection 
notice would give USCIS the flexibility to stagger filings, as 
described below, and provide filing periods of longer than 60 days if 
necessary to accommodate processing backlogs or other operational 
needs.
    If an H-1B cap-subject petition is filed before or after the 
applicable filing period noted on the selection notice, USCIS would 
reject the H-1B cap-subject petition (if caught at intake) or deny the 
petition (if caught by an officer during an adjudicative review of the 
petition). See proposed 8 CFR 214.2(h)(8)(iii)(D)(2). A selected 
registrant who does not file a petition on behalf of the named 
beneficiary within the timeframe stated on the selection notice would 
forego eligibility to file and any consideration for an available H-1B 
cap or advanced degree exemption number based on that selection notice.
    DHS is proposing to set a filing period of at least 60 days to 
ensure that the petitioner has adequate time to prepare and file the H-
1B petition. If, for example, a petitioner's selection notice dated 
March 22, contains a 60-day filing period beginning on April 1 and 
ending on May 31, the petition may not be filed before April 1 and must 
be filed no later than May 31, or USCIS would reject the petition. If 
the last day of the 60-day filing period is a Saturday, Sunday, or 
legal holiday, the petitioner would have until the following day that 
is not a Saturday, Sunday, or legal holiday to file the petition. See 8 
CFR 1.2.
    DHS anticipates that there would be several filing periods for each 
fiscal year. For example some selected registrations may be provided a 
filing window between April 1 and May 31, while other selected 
registrations may be provided a filing window between May 1 and June 
30. Separate filing windows would help USCIS manage the surge of cap-
subject petitions received after it conducts the lottery. Separate 
filing windows would allow USCIS to more efficiently use its resources 
(e.g., personnel) to complete the intake process and allow for the most 
efficient processing and adjudication of cap-subject petitions. DHS 
believes that a 60-day filing window would allow a petitioner 
sufficient time to obtain an LCA, if they have not already, and prepare 
the full H-1B package for filing.
    The proposed filing period in which a selected registrant may file 
a petition on behalf of the named beneficiary is not entirely 
consistent with the existing regulation that provides a petitioner the 
ability to file a petition up to six months before the date of actual 
need for the beneficiary's services or training, because the first day 
of the proposed filing period may be less than six months before the 
date of actual need. See current 8 CFR 214.2(h)(9)(i)(B); see also 20 
CFR 655.730(b). For that reason, DHS clarifies that current 8 CFR 
214.2(h)(9)(i)(B) establishes the outer limit of when an H petition may 
be filed, but that other regulatory provisions, such as proposed 
paragraph (h)(8)(iii)(D)(2), may shorten that filing period. DHS is 
also proposing to re-designate this paragraph as new paragraph 
(h)(2)(i)(I) so that it is grouped under petition filing procedures. 
DHS is also making a technical amendment to current 8 CFR 
214.2(h)(9)(i) to combine 8 CFR 214.2(h)(9)(i) introductory text and 
(h)(9)(i)(A), but is making no other changes to this section.

B. Proposed Advanced Degree Exemption Allocation Amendment

    DHS proposes to amend the regulations currently at 8 CFR 
214.2(h)(8)(ii)(B) to change the process by which USCIS would select H-
1B petitions that may be counted under section 214(g)(1)(A) or section 
214(g)(5)(C) of the INA. See proposed 8 CFR 214.2(h)(8)(iii)(A)(5) and 
(6) and (h)(8)(iv). The proposed amendment would change the order in 
which registrations are counted towards the projected number needed to 
reach the H-1B allocations. Currently, USCIS counts petitions filed for 
beneficiaries with a master's degree or higher from a U.S. institution 
of higher education under the H-1B advanced degree exemption first 
until the projected number of petitions needed to meet the advanced 
degree exemption allocation is reached. Under the proposed amendments, 
USCIS would include registrations for petitions that are eligible for 
the H-1B advanced degree exemption under the regular cap first until 
the projected number needed to meet the regular cap is reached. Once 
the regular cap projected number is reached, USCIS would then count 
those registrations for petitions eligible for the advanced degree 
exemption and not selected under the regular cap toward the projected 
number needed to reach the advanced degree exemption allocation. 
Changing the order in which USCIS counts these prospective 
beneficiaries toward the applicable projections would likely increase 
the number of petitions filed for beneficiaries each fiscal year with a 
master's or higher degree from a U.S. institution of higher education, 
and in turn, increase the number of individuals with a master's or 
higher degree from a U.S. institution of higher education who are 
issued H-1B visas or otherwise provided H-1B status.\16\
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    \16\ For clarification, as proposed in this rule, the selection 
of a number of registrations that USCIS projects would be sufficient 
to meet the regular cap and advanced degree exemption is distinct 
from the fulfillment of the cap or exemption through ``issu[ance] of 
visas or otherwise provid[ing H-1B] nonimmigrant status.'' See INA 
214(g)(1)(A).
---------------------------------------------------------------------------

    Under Executive Orders 12866 and 13653 of this regulation, USCIS 
analyzed the current selection process and the proposed selection 
process to determine which process would increase the likelihood that 
H-1B petitions are granted for beneficiaries with a master's degree or 
higher from a U.S. institution of higher education. The proposed change 
would prioritize petitions filed on behalf of beneficiaries who have 
attained a master's or higher degree from a U.S. institution of higher 
education. DHS believes the advanced degree exemption statutory 
provision at section 214(g)(5)(C) is best read as intending to increase 
the number of individuals with advanced degrees from U.S. institutions 
issued H-1B visas or otherwise provided H-1B status by 20,000. As 
described, the current lottery system does not provide an optimal 
mechanism for achieving that aim because it dilutes the candidate pool 
in a manner that greatly diminishes the possibility of adding 20,000 
such H-1B nonimmigrants beyond those that would be admitted without the 
advanced degree exemption allocation.

C. Cap Allocation Alternative: Temporary Suspension of the H-1B 
Registration Process

    As an alternative to the proposal to implement a registration 
process for cap-subject H-1B petitions, as well as to address 
circumstances in which it may be necessary to suspend the registration 
process for H-1B cap-subject petitions, DHS proposes amending its 
regulations to allow for a change in how it counts a sufficient number 
of petitions needed to reach the regular cap or advanced degree 
exemption under the existing petition-based process (i.e., reversing

[[Page 62418]]

the selection order separate and apart from implementing a registration 
process). This approach primarily is intended to address rare 
circumstances in which USCIS may experience technical challenges with 
the H-1B registration process and/or the new electronic system that 
would be used to submit H-1B registrations, or where the system 
otherwise is inoperable for any reason. The approach would also allow 
USCIS to up-front delay the implementation of the H-1B registration 
process past the FY 2020 cap season, if necessary to complete all 
requisite user testing and vetting of the new H-1B registration system 
and process and to otherwise ensure the system and process are 
operable. Under this alternative, if USCIS suspends the registration 
process, USCIS would make an announcement on its website (http://www.uscis.gov) to inform the public that the registration requirement 
for that fiscal year is being suspended, and provide the opening date 
of the applicable petition-filing period. So while petitioners would 
not be required to register and be selected in order to properly file 
an H-1B cap-subject petition, USCIS would still reverse the order of 
counting the petitions toward the H-1B allocations such that it would 
first count all cap-subject H-1B petitions, including those that may be 
eligible for the advanced degree exemption, towards the regular cap 
until the projected number of petitions needed to meet the regular cap 
is reached. Once the regular cap projected number is reached, USCIS 
would then count those petitions eligible for the advanced degree 
exemption and not selected under the regular cap toward the projected 
number needed to reach the advanced degree exemption allocation. See 
proposed 8 CFR 214.2(h)(8)(iv)(B). This alternative would further the 
same goal of increasing the likelihood that more beneficiaries with 
advanced degrees from U.S. institutions of higher education would be 
selected and ultimately issued an H-1B visa or otherwise provided H-1B 
status. DHS may elect to finalize and implement changes to the 
selection process independently from the new H-1B registration process, 
or before such registration process is implemented. DHS seeks public 
comments on this alternative. DHS views the H-1B registration process 
and the new H-1B regular cap and advanced degree exemption allocation 
process as separate, and founded on different policy objectives, as set 
forth above, and has only included both proposals into a single rule in 
service of expediency. Therefore, DHS may opt to finalize and implement 
each proposal separately, and on a schedule most likely to ensure 
orderly and appropriate administration of the H-1B allocations.

D. Severability

    In addition to the provisions that permit USCIS to implement 
changes to the H-1B regular cap and advanced degree exemption selection 
process independently from the registration process for H-1B cap-
subject petitions, DHS is proposing to include in the regulation a 
severability clause. This clause would provide that DHS would continue 
to implement either the new H-1B regular cap and advanced degree 
exemption allocation process or the registration process independently 
in the event it cannot implement the both together (e.g., if one of the 
processes is enjoined or invalidated by a court of a competent 
jurisdiction). See proposed 8 CFR 214.2(h)(8)(v).

E. Conforming Change to the H-2B Filing Period

    DHS is proposing to remove a reference to the now outdated 120-day 
filing period for H-2B petitions currently contained in 8 CFR 
214.2(h)(9)(i)(B), which is being redesignated in the proposed rule as 
8 CFR 214.2(h)(2)(i)(I). Per 8 CFR 214.2(h)(6)(iv) and (v), an H-2B 
petition may not be filed with USCIS unless it is accompanied, in all 
cases, by an approved Temporary Labor Certification from DOL. 
Therefore, this proposed revision does not change existing filing 
procedures for H-2B petitions, but merely removes a timeframe in the 
regulatory provision that is no longer applicable because it intended 
to match a DOL regulation that has since been amended. Further, DHS 
clarifies that proposed 8 CFR 214.2(h)(2)(i)(I), as amended, would 
establish the outer limit for when a petition for H classification may 
be filed, but that other regulatory provisions, such as 8 CFR 
214.2(h)(1)(ii)(D) and (h)(6)(iii)(C) (requiring that a TLC must be 
issued by the DOL or Governor of Guam before an H-2B petition may be 
filed with USCIS) or 8 CFR 214.2(h)(5)(i)(A) (requiring that an H-2A 
petition must be filed with a single, valid temporary agricultural 
labor certification) may shorten that filing period in a specified 
context.

F. Other Technical Amendments

    DHS is proposing various technical amendments to 8 CFR 
214.2(h)(8)(ii) to reflect the proposed changes. First, DHS would make 
a technical change by removing the discussion of H numerical limitation 
calculations in current 8 CFR 214.2(h)(8)(ii)(B) and adding new 
paragraphs discussing numerical limitations: Proposed paragraphs 
(h)(8)(iii) and (iv) discuss H-1B numerical limitations and paragraph 
(h)(8)(vii) discusses H-2B numerical limit calculations. DHS would also 
redesignate 8 CFR 214.2(h)(8)(ii)(C) and (D) as 8 CFR 
214.2(h)(8)(ii)(B) and (C), respectively. In addition, DHS would 
redesignate 8 CFR 214.2(h)(8)(ii)(E) as 8 CFR 214.2(h)(8)(vi), as well 
as redesignate 8 CFR 214.2(h)(8)(ii)(F) as 8 CFR 214.2(h)(8)(iii)(F). 
DHS would also move the text of paragraph (h)(9)(i)(B) into paragraph 
(h)(2)(i)(I). These proposed redesignated paragraphs remain as 
currently codified; however, DHS would update cross reference citations 
in current 8 CFR 214.2(h)(8)(ii) to reflect these technical changes.

V. Statutory and Regulatory Requirements

A. Executive Orders 12866 and 13563

    Executive Orders (E.O.) 12866 and 13563 direct agencies to assess 
the costs and benefits of available alternatives, and if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects, distributive impacts, and equity). E.O. 13563 emphasizes the 
importance of quantifying both costs and benefits, of reducing costs, 
of harmonizing rules, and of promoting flexibility. The Office of 
Information and Regulatory Affairs has determined that this rule 
constitutes an ``economically significant'' regulatory action under 
section 3(f) of E.O. 12866. Accordingly, the rule has been reviewed by 
the Office of Information and Regulatory Affairs.
1. Summary
    DHS is proposing to amend its regulations governing the process for 
petitions filed on behalf of cap-subject H-1B workers. Specifically, 
DHS is proposing to add a registration requirement for petitioners 
seeking to file H-1B cap-subject petitions on behalf of foreign 
workers. Additionally, DHS is proposing to change the order in which H-
1B cap-subject petitions would be selected towards the applicable 
projections needed to meet the annual H-1B allocations in order to 
increase the odds for selection for H-1B beneficiaries who have earned 
a master's or higher degree from a U.S. institution of higher 
education.
    All petitioners seeking to file an H-1B cap-subject petition would 
have to submit a registration. However, under

[[Page 62419]]

the proposed process, only those whose registrations are selected 
(termed ``selected registrant'' \17\ for purposes of this analysis) 
would be eligible to file an H-1B cap-subject petition for those 
selected registrations and during the associated filing period. 
Therefore as selected registrants under the proposed registration 
requirement, selected petitioners would incur additional opportunity 
costs of time to complete the electronic registration relative to the 
costs of completing and filing the associated H-1B petition, the latter 
costs being unchanged from the current H-1B petitioning process. 
Conversely, those who complete registrations that are unselected 
because of excess demand (termed ``unselected registrant'' for purposes 
of this analysis) would experience cost savings relative to the current 
process, as they would no longer have to complete an entire H-1B cap-
subject petition that ultimately does not get selected for USCIS 
processing and adjudication as done by current unselected petitioners.
---------------------------------------------------------------------------

    \17\ DHS notes that entities may submit multiple registrations 
which could result in a mix of selected and unselected outcomes. For 
the purpose of this analysis, the terms ``selected registrant'' and 
``unselected registrant'' refer to the originator of a submission 
based on its outcome and should not be deemed a unilateral label for 
a single entity. Using this terminology it is possible for a single 
entity to experience impacts simultaneously as a selected registrant 
and as an unselected registrant.
---------------------------------------------------------------------------

    To estimate the costs of the proposed registration requirement, DHS 
compared the current costs associated with the H-1B petition process to 
the anticipated costs imposed by the additional proposed registration 
requirement. DHS compared costs specifically for selected and 
unselected petitioners because the impact of the proposed registration 
requirement to each population is not the same. Current costs to 
selected petitioners are the sum of filing fees associated with each H-
1B cap-subject petition and the opportunity cost of time to complete 
all associated forms. Current costs to unselected petitioners are only 
the opportunity cost of time to complete forms and cost to mail the 
petition since USCIS returns the H-1B cap-subject petition and filing 
fees to unselected petitioners.
    Under the proposed requirement, the opportunity cost of time 
associated with required registration would be a cost to all 
petitioners (selected and unselected), but those whose registrations 
are not selected would be relieved from the opportunity cost associated 
with completing and mailing an entire H-1B cap-subject petition. 
Therefore, DHS estimates proposed costs of this rule to selected 
petitioners for completing an H-1B cap-subject petition as the sum of 
new registration costs and current costs. DHS estimates that the costs 
of this proposed rule to unselected petitioners would only result from 
the estimated opportunity costs associated with the registration 
requirement. Overall, unselected petitioners would experience a cost 
savings relative to the current H-1B cap-subject petitioning process; 
DHS estimates these cost savings by subtracting new registration costs 
from current costs of preparing an H-1B cap-subject petition. These 
estimated quantitative cost savings would be a benefit that would 
accrue to only those with registrations that were not selected.
    Currently, for selected petitioners the aggregated total costs to 
complete an entire H-1B cap-subject petition ranges from $128.4 million 
to $161.1 million, depending on who petitioners use to prepare a 
petition. These current costs to complete and file an H-1B cap-subject 
petition are based on a 5 year petition volume average and may differ 
across sets of fiscal years. Current costs are not changing for 
selected petitioners as a result of this proposed registration 
requirement. Rather, this proposed registration requirement would add a 
new opportunity cost of time to selected petitioners who will continue 
to face current H-1B cap-subject petition costs. DHS estimates the 
added opportunity cost of time to selected petitioners under this 
proposed registration requirement would range from $6.2 million to 
$10.3 million, again depending on who petitioners use to submit a 
registration and prepare a petition. Therefore, under the proposed 
registration requirement, DHS estimates an adjusted total cost to 
complete an entire H-1B cap-subject petition would range from $134.7 
million to $171.4 million. Since these petitioners already file Form I-
129, only the registration costs of $6.2 million to $10.3 million are 
considered as new costs.
    Unselected petitioners would experience an overall cost savings, 
despite new opportunity costs of time associated with the proposed 
registration requirement. Currently for unselected petitioners, the 
total cost associated with the H-1B process is $53.5 million to $85.6 
million, depending on who petitioners use to prepare the petition. The 
difference between total current costs for selected and unselected 
petitioners in an annual filing period consists of fees returned to 
unselected petitioners. DHS estimates the total costs to unselected 
petitioners from the registration requirement would range from $6.2 
million to $10.1 million. DHS estimates a cost savings occurs because 
under the proposed requirement unselected petitioners would avoid 
having to file an entire H-1B cap-subject petition and only have to 
submit a registration. Therefore, the difference between current costs 
and proposed costs for unselected petitioners would represent a cost 
savings ranging from $47.3 million to $75.5 million, again depending on 
who petitioners use to submit the registration.
    The government would also benefit from the proposed registration 
provision by no longer having to receive, handle and return large 
numbers of petitions that are currently rejected because of excess 
demand (unselected petitions). These activities would save DHS an 
estimated $1.6 million annually.\18\ USCIS would, however, have to 
expend a total of $279,149 in the development of the registration 
website in the first year after this proposed rule would become 
effective. In subsequent years, DHS would incur labor and maintenance 
costs of $200,000 per year. Over ten years, USCIS would incur 
maintenance costs of $2,079,149, resulting in an annualized amount of 
$225,269 discounted at 7 percent and $215,279 discounted at 3 percent, 
for that timeframe. Discounted over 10 years, this provision would 
result in costs to USCIS totaling $1.8 million based on a discount rate 
of 3 percent and $1.6 million based on a discount rate of 7 percent.
---------------------------------------------------------------------------

    \18\ Although DHS does not estimate the impact of the proposed 
registration provision to DOL processes, DHS recognizes DOL may have 
some cost savings due to fewer LCA adjudications.
---------------------------------------------------------------------------

    The net quantitative impact of this proposed registration 
requirement is an aggregate cost savings to petitioners and to 
government ranging from $42.4 million to $66.5 million annually. Using 
lower bound figures, the net quantitative impact of this proposed 
registration requirement is cost savings of $424.8 million over ten 
years. Discounted over 10 years, these cost savings would be $373.2 
million based on a discount rate of 3 percent and $319.2 million based 
on a discount rate of 7 percent. Using upper bound figures, the net 
quantitative impact of this proposed registration requirement is cost 
savings of $666.4 million over ten years. Discounted over ten years, 
these cost savings would be $585.5 million based on a discount rate of 
3 percent and $500.8 million based on a discount rate of 7 percent.
    DHS notes that these overall cost savings result only in years when 
the demand for registrations and the subsequently filed petitions 
exceeds the number of available visas needed to meet the regular cap 
and advanced

[[Page 62420]]

degree exemption allocation. For years where DHS has demand that is 
less than the number of available visas, this proposed registration 
requirement would result in costs. For this proposed rule to result in 
net quantitative cost savings, at least 110,182 petitions 
(registrations and subsequently filed petitions under the proposed 
rule) would need to be received by USCIS based on lower bound cost 
estimates. For upper bound cost estimates, USCIS would need to receive 
at least 111,137 registrations and subsequently filed petitions for 
this proposed rule to result in net quantitative cost savings.
    The proposed change to the petition selection process would result 
in an estimated increase in the number of H-1B beneficiaries with a 
master's degree or higher from a U.S. institution of higher education 
selected by 16 percent (or 5,340 workers). This increase could result 
in greater numbers of highly educated workers with degrees from U.S. 
institutions of higher education entering the U.S. workforce under the 
H-1B program. DHS recognizes there could be a wage differential across 
industries, but due to the variance in the composition of the 
beneficiaries subject to the cap and their associated differences in 
educational level, whether any advanced degrees are from U.S. or 
foreign institutions of higher education, and the location of the 
ultimate job opportunity, DHS cannot reliably estimate the impact on 
wages under this proposed rule. Under an assumption that the change to 
the petition selection process resulted in 5,000 workers with an 
average fully loaded wage of at least $20,000 transferring from one 
market or industry to the other, then the rule would meet the $100 
million threshold for economic significance.
    Table 3 provides a detailed summary of the proposed changes and 
their impacts.

               Table 3--Summary of Provisions and Impacts
------------------------------------------------------------------------
                                                     Expected benefit of
    Current and proposed      Expected cost of the      the proposed
         provisions            proposed provision         provision
------------------------------------------------------------------------
Currently, all petitioners    Petitioners--         Petitioners--
 who file on behalf of an H-   For current   Petitioners
 1B worker must complete and   selected              whose registrations
 file H-1B cap-subject         petitioners, the      are not selected
 petitions along with a        proposed rule would   would have cost
 certified DOL Labor           add an additional     savings that would
 Condition Application         annual opportunity    range from $47.3
 (LCA). For selected           cost of time          million to $75.5
 petitioners, the total        ranging from $6.2     million from no
 current cost to file and      million to $10.3      longer having to
 complete an entire H-1B cap-  million, depending    complete and file H-
 subject petition ranges       on who the            1B cap-subject
 from $128.4 million to        petitioner uses to    petitions along
 $161.1 million. For           submit the            with mailing costs
 unselected petitioners, the   registration.         despite new
 total current cost is $53.5   Therefore, the        opportunity cost of
 million to $85.6 million.     total costs of        time to submit
DHS is proposing to require    registering and       registration.
 all petitioners who seek to   completing and       Government--
 hire a cap-subject H-1B       filing H-1B cap-      USCIS would
 worker to register for each   subject petitions     save $1.6 million
 prospective H-1B worker for   would range from      annually in
 whom they seek to file a      $134.7 million to     processing and
 cap-subject H-1B petition.    $171.4 million to     return shipping
 Only those petitioners        this population       costs, as fewer
 whose registrations are       annually, depending   petitions will be
 selected may proceed to       on the type of        filed with USCIS
 complete and file an H-1B     petition preparer.    based on
 cap-subject petition.         For current   registrations that
                               unselected            were not selected.
                               petitioners, the
                               proposed rule would
                               add an opportunity
                               cost of time
                               ranging from $6.2
                               million to $10.1
                               million to this
                               population
                               annually, depending
                               on who the
                               petitioner uses to
                               submit the
                               registration.
                              Government--
                               The
                               proposed rule would
                               cost the government
                               $279,149 in the
                               first year to
                               develop the
                               registration
                               Website. In
                               subsequent years,
                               USCIS would incur
                               annual labor and
                               maintenance costs
                               of $200,000.
Under the current H-1B        Petitioners--         Petitioners and
 selection process, if the     The           Government--
 regular cap and advanced      proposed selection    The
 degree exemption are          process could         proposed selection
 reached during the first      decrease the number   process could
 five business days that cap-  of cap-subject H-1B   increase the number
 subject petitions can be      petitions for         of cap-subject H-1B
 filed, USCIS randomly         beneficiaries with    petitions that are
 selects sufficient H-1B       bachelor's degrees,   selected for
 petitions to reach the H-1B   advanced degrees      beneficiaries with
 20,000 advanced degree        from U.S. for-        master's degrees or
 exemption first. Then,        profit                higher from U.S.
 USCIS randomly selects        universities, or      institutions of
 sufficient H-1B petitions     foreign advanced      higher education by
 from the remaining pool of    degrees by up to      an estimated 16
 beneficiaries, including      5,340 workers. This   percent (or 5,340
 those not selected in the     potential decrease    workers) annually.
 advanced degree exemption     could result in       DHS believes the
 to reach the H-1B 65,000      some higher labor     increase in the
 regular cap limit. USCIS      costs to              number of H-1B
 rejects all remaining         petitioners           beneficiaries with
 unselected H-1B cap-subject   assuming that         a master's degree
 petitions.                    beneficiaries with    or higher from a
The proposed process would     bachelor's degrees,   U.S. institution of
 reverse the selection         advanced degrees      higher education
 process so that USCIS would   from U.S. for-        would likely result
 randomly select               profit universities   in more highly
 registrations for the H-1B    or foreign advanced   educated workers
 regular cap first,            degrees are paid      entering the U.S.
 including registrations for   less than and         workforce.
 petitions eligible for the    replaced by
 H-1B advanced degree          beneficiaries with
 exemption. Then USCIS would   master's degrees
 randomly select               from U.S.
 registrations for the H-1B    institutions of
 advanced degree exemption.    higher education.
                               DHS does
                               not anticipate, as
                               a result of the new
                               selection process,
                               petitioning
                               employers would
                               suffer economic
                               harm from the
                               decreased
                               probability of
                               selecting H-1B
                               petitions eligible
                               only under regular
                               cap.
------------------------------------------------------------------------

    As discussed previously in the preamble, this proposed rule would 
also allow for the H-1B regular cap and advanced degree exemption 
selections to take place in the event that the registration system is 
inoperable for any reason and needs to be suspended. If temporary 
suspension of the registration system is necessary, then the cost and 
benefits described in this analysis resulting from registration for the 
petitioners and government would not

[[Page 62421]]

apply during any period of temporary suspension. However, the proposed 
selection reversal process would still take place and are anticipated 
to yield a higher proportion of H-1B beneficiaries with a master's 
degree or higher from a U.S. institution of higher education being 
selected.
2. Background and Purpose of the Proposed Rule
    The H-1B program allows U.S. employers to temporarily employ 
foreign workers in occupations that require the theoretical and 
practical application of a body of highly specialized knowledge and a 
bachelor's degree or higher in the specific specialty or its 
equivalent.
    As the preamble explains, Congress limits the number of H-1B visas 
to 65,000 new visas annually (``regular cap''), with certain exemptions 
including a limited exemption for beneficiaries who have earned a 
master's or higher degree from a U.S. institution of higher 
education.\19\ The annual exemption from the 65,000 cap for H-1B 
beneficiaries who have earned a qualifying U.S. master's or higher 
degree is limited to 20,000 beneficiaries (``advanced degree 
exemption'').\20\
---------------------------------------------------------------------------

    \19\ See INA section 214(g)(1) and (g)(5), 8 U.S.C. 1184(g)(1) 
and (g)(5).
    \20\ Id.
---------------------------------------------------------------------------

    Currently, when an employer wants to hire an H-1B worker who is 
subject to the regular cap or advanced degree exemption, the petitioner 
must first obtain a certified Labor Condition Application (LCA) from 
the U.S. Department of Labor (DOL) and then complete and file a 
Petition for a Nonimmigrant Worker (Form I-129) with USCIS during the 
H-1B cap filing period. The first day on which petitioners may file H-
1B petitions can be as early as 6 months ahead of the projected 
employment start date.\21\ For example, a U.S. employer seeking an H-1B 
beneficiary 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 beneficiary 
for the first day of Fiscal Year (FY) 2020, October 1, 2019, would be 
allowed to file an H-1B petition as early as April 1, 2019. Therefore, 
the cap filing period begins on or shortly after April 1 each year and 
generally ends when USCIS has received enough petitions projected as 
needed to fill the H-1B numerical limitations.
---------------------------------------------------------------------------

    \21\ See 8 CFR 214.2(h)(9)(i)(B).
---------------------------------------------------------------------------

    Each year USCIS monitors the number of H-1B cap-subject petitions 
it receives at its service centers. When USCIS determines that it has 
received a sufficient number of petitions projected as needed to reach 
the H-1B allocations, it announces on its website the final receipt 
date on which petitioners may file an H-1B cap-subject petition for 
that fiscal year.\22\ USCIS then may randomly select from the cap-
subject petitions received on the final receipt date the number of 
petitions projected as needed to reach the H-1B allocations. If the 
final receipt date falls on any of the first five business days on 
which cap petitions may be filed, USCIS randomly selects the requisite 
number of petitions from among all petitions received on any of those 
five business days.\23\ USCIS rejects all H-1B cap-subject petitions 
received after the final receipt date.\24\
---------------------------------------------------------------------------

    \22\ See 8 CFR 214.2(h)(8)(ii)(B).
    \23\ Id.
    \24\ See 8 CFR 214.2(h)(8)(ii)(D).
---------------------------------------------------------------------------

    Each year, to administer the H-1B cap and advanced degree 
exemption, USCIS expends resources towards opening and sorting mail, 
identifying properly filed petitions, and removing duplicate petitions 
before proceeding with the petition selection process. In years of high 
petition volume, these duties present operational challenges for USCIS, 
including greater labor needs and limited space at Service Centers 
where petitions are stored, sorted, and selected.
    Once the petitions have been sorted and assigned a case 
identification number, if USCIS determines that a lottery should be 
conducted, USCIS randomly selects a certain number of H-1B cap-subject 
petitions projected as needed to meet the numerical limitation. USCIS 
makes projections on the number of H-1B cap-subject petitions necessary 
to meet the numerical limit, taking into account historical data 
related to approvals, denials, revocations, and other relevant 
factors.\25\ USCIS uses these projections to determine the number of 
petitions to select to meet, but not exceed, the 65,000 regular cap and 
20,000 advanced degree exemption, although the exact percentage and 
number of petitions may vary depending on the applicable projections 
for a particular fiscal year. USCIS begins the H-1B cap and advanced 
degree selection process by first randomly selecting petitions that 
will apply to the projections needed to reach the 20,000 advanced 
degree exemption.\26\ Once the selection process for the 20,000 
advanced degree exemption is complete, USCIS then randomly selects 
petitions that apply to the projections needed to reach the 65,000 
regular cap limit. USCIS then rejects all remaining H-1B petitions and 
returns the petition and associated fees to the petitioners. For 
petitions selected during the selection process, USCIS enters petition 
information into its database and notifies the petitioner of their 
selection, which includes receipting and depositing associated petition 
fees.
---------------------------------------------------------------------------

    \25\ See 8 CFR 214.2(h)(8)(ii)(B).
    \26\ Id.
---------------------------------------------------------------------------

3. Proposed Changes
    DHS proposes to establish a mandatory electronic registration 
requirement that would address some of the current operational 
challenges associated with the H-1B cap-subject petition process. The 
electronic registration would commence before the H-1B cap filing 
season, which currently begins on April 1 each year (or the next 
business day if April 1 falls on Saturday, Sunday or a legal holiday). 
The proposed rule would require petitioners to create an account and 
electronically register through the USCIS website each prospective H-1B 
worker on whose behalf the petitioner seeks to file an H-1B cap-subject 
petition. DHS estimates that each unique account creation by a 
petitioner would take 0.17 hours and each electronic registration for a 
unique beneficiary would take 0.5 hours to complete.\27\ DHS describes 
in further detail how the proposed electronic registration process 
would work in the preamble.
---------------------------------------------------------------------------

    \27\ DHS assumes petitioners would not need to expend additional 
funds to procure computer equipment or acquire internet connections 
since DOL already requires employers to electronically file Labor 
Condition Applications (LCAs), and an approved LCA is a requisite 
for requesting an H-1B employee. This assumption was made in the 
2011 proposed rule, ``Registration Requirement for Petitioners 
Seeking to File H-1B Petitions on Behalf of Aliens Subject to the 
Numerical Limitations'' and USCIS received no comments regarding 
this assumption.
---------------------------------------------------------------------------

    Only those with a selected registration would be eligible to submit 
an associated H-1B cap-subject petition on behalf of a cap-subject H-1B 
worker to USCIS. As described previously in the preamble, registrants 
would receive notification of selection and could then proceed to 
obtaining a certified LCA from DOL and afterward proceed to preparing 
and filing H-1B cap-subject petitions with USCIS. Those with 
registrations that are not selected would not have to complete and file 
H-1B cap-subject petitions for the H-1B cap-subject worker named in the 
unselected registration, as they would be ineligible to file an H-1B 
cap-subject petition for that beneficiary in that fiscal year.

[[Page 62422]]

    Additionally, DHS is proposing to change the H-1B random selection 
process to provide more H-1B visas to beneficiaries with master's 
degrees or higher from U.S. institutions of higher education. DHS is 
proposing to change the H-1B selection process by first selecting H-1B 
registrations towards the projected number of petitions needed to meet 
the 65,000 regular cap limit, which would include all cap-subject 
beneficiaries, including those with a master's degree or higher from a 
U.S. institution of higher education. Then USCIS would select 
registrations that are eligible for the 20,000 advanced degree 
exemption, which are those with master's degrees or higher from U.S. 
institutions of higher education, towards the projected number needed 
to reach the advanced degree exemption. This proposed process would 
allow those petitions with beneficiaries who have a master's degree or 
higher from U.S. institutions of higher education a greater chance to 
be selected.
4. Population
    The population impacted by this proposed rule includes those 
petitioners who file on behalf of H-1B cap-subject beneficiaries (i.e., 
beneficiaries who would be subject to the regular cap, and 
beneficiaries on whose behalf an H-1B petition asserting an advanced 
degree exemption would be filed). These petitioning entities are 
typically referred to as H-1B petitioners in DHS regulations and in 
this preamble. When discussing the proposed registration requirements, 
DHS refers to this same population as both registrants and petitioners 
for purposes of this analysis. Those terms refer to the same 
petitioning entities in the H-1B process.
a. Estimated Population Impacted by Proposed Registration Requirement
    In order to estimate the population impacted by the proposed 
registration requirement, DHS uses historical filing data of H-1B cap-
subject petitioners. These petitioners complete and file Form I-129. 
Petitioners may also choose or be required to complete and file the 
following USCIS forms:
     Request for Premium Processing Service (Form I-907), if 
seeking expedited petition processing, and/or
     Notice of Entry of Appearance as Attorney or Accredited 
Representative (Form G-28), if the petition is completed and filed by a 
lawyer or accredited representative.
    Table 4 shows historical filings of Form I-129 for H-1B cap-subject 
petitions.

                       Table 4--H-1B Cap-Subject Petitions Received by USCIS, FY 2013-2017
----------------------------------------------------------------------------------------------------------------
                                                                        Total number of selected petitions
                                                   Total number  -----------------------------------------------
                                                   of H-1B Cap-      Number of
                   Fiscal year                        subject       Forms I-129      Number of       Number of
                                                     petitions       petitions       petitions       petitions
                                                       filed         randomly       filed with      filed with
                                                                     selected       Form I-907       Form G-28
----------------------------------------------------------------------------------------------------------------
2013............................................         124,130          98,318          24,731          72,959
2014............................................         172,581          98,034          25,860          74,424
2015............................................         232,973          97,714          26,502          71,959
2016............................................         236,444          95,622          30,622          68,503
2017............................................         198,460          96,301          12,324          78,517
                                                 ---------------------------------------------------------------
5-year average..................................         192,918          97,198          24,008          73,272
----------------------------------------------------------------------------------------------------------------
Source: Total Number of H-1B Cap-Subject Petitions Filed FY 2013-2017, USCIS Service Center Operations (SCOPS),
  June, 2017. Total Number of Selected Petitions data, USCIS Office of Performance and Qualify (OPQ),
  Performance Analysis and External Reporting (PAER), January 2018.
\a\ Premium processing service was suspended during FY 17 until September. The FY 17 count for premium
  processing requests (12,324 Form I-907) does not reflect requests accepted initially with Form I-129 during
  the suspension, rather it reflects premium processing requests received after the suspension was lifted for
  any pending petitions. This is because from September onward, petitioners could submit premium processing
  requests for petitions with a pending status.

    In FY 2017, USCIS received 198,460 H-1B petitions in the first five 
days that cap-subject petitions could be filed, a 16 percent \28\ 
decline in H-1B cap-subject petitions from FY 2016. Though the receipt 
of H-1B cap-subject petitions fell in FY 2017, the petitions received 
still far exceeded the numerical limitations, continuing a trend of 
excess demand since FY 2010.\29\ DHS uses the five-year average of H-1B 
cap-subject petitions received from FY 2013 to FY 2017 (192,918) as the 
estimate of H-1B cap-subject petitions that would be received annually. 
DHS uses the historical five-year average of 192,918 as seen in Table 4 
as a reasonable proxy for the number of registrations that would be 
submitted in an annual filing period. DHS recognizes that the use of 
this historical average does not include the possibility that the 
registration's lower barrier to entry will result in an increase in the 
number of registrations. Currently, DHS does not have data to estimate 
the likelihood of that occurrence. However, as discussed previously, 
this proposed rule incorporates measures to minimize the number of 
petitioners who might try to flood the registration in order to 
increase the chances of their petition being selected. Nevertheless, if 
these mitigation measures are not fully successful, the estimates based 
on historical averages may underestimate the actual numbers of 
registrations, and thus underestimate the costs of the rule.
---------------------------------------------------------------------------

    \28\ Calculation: (236,444 FY16 H-1B cap-subject petitions-
198,460 FY17 H-1B cap-subject petitions)/236,444 Form I-129 
petitions = 16 percent (rounded).
    \29\ For H-1B filing petitions data prior to FY 2013, see USCIS 
Reports and Studies, retrieved at https://www.uscis.gov/tools/reports-studies/reports-and-studies. Visited March 3, 2018.
---------------------------------------------------------------------------

    Table 4 also shows historical filings for Form I-907 and Form G-28 
that accompanied selected H-1B cap-subject petitions. DHS uses this 
data to obtain the numbers of H-1B cap-subject petitions that are filed 
with a Form I-907 and/or Form G-28. DHS notes that these forms are not 
mutually exclusive. Based on the five-year average, DHS estimates 25 
percent \30\ of selected petitions would include Form I-907 and 75 
percent \31\ of selected petitions would include Form G-28. Based on 
operational resource considerations, USCIS has announced temporary 
suspensions of the premium processing

[[Page 62423]]

service in the past.\32\ For the purposes of this analysis, DHS assumes 
that Form I-907 would not be suspended and includes eligibility for 
petitioners to voluntarily incur such costs in both the baseline and 
proposed costs analysis.
---------------------------------------------------------------------------

    \30\ Calculation: 24,008 Form I-907/97,198 Form I-129 petitions 
= 25 percent (rounded).
    \31\ Calculation: 73,272 Forms G-28/97,198 Form I-129 petitions 
= 75 percent (rounded).
    \32\ DHS notes USCIS temporarily suspended premium processing of 
all H-1B petitions on March 20, 2018. USCIS News Releases. ``USCIS 
Will Temporarily Suspend Premium Processing for Fiscal Year 2019 H-
1B Cap Petitions.'' March 3, 2017. https://www.uscis.gov/news/alerts/uscis-will-temporarily-suspend-premium-processing-fiscal-year-2019-h-1b-cap-petitions. Visited April 13, 2018.
---------------------------------------------------------------------------

    Table 5 summarizes the population under the current filing process 
for selected petitions versus unselected petitions because the impact 
of the proposed registration requirement is not the same for selected 
and unselected petitioners. DHS estimates 95,720 unselected petitions 
by subtracting selected petitions from the total petitions filed .\33\ 
DHS also distinguishes the number of petitions with premium processing 
fees (Form I-907) and the number of petitions filed by a lawyer or 
other accredited representative (Form G-28). Historical filings for 
Form I-907 and Form G-28 that accompanied selected petitions were 
estimated to be 25 percent and 75 percent respectively. DHS reasonably 
applies those percentages to the number of total petitions and 
estimates 47,651 \34\ Form I-907 and 145,431 \35\ Form G-28 were 
submitted with total petitions filed. Since DHS uses the five-year 
average of total petitions received (192,918) as the estimate of 
petitions that would be received annually, DHS also assumes the five-
year average of Form I-907 (24,008) and Form G-28 (73,272) that 
accompany selected petitions is a reasonable annual estimate for each 
form. For unselected petitions, DHS estimates 23,643 \36\ Form I-907 
and 72,158 \37\ Form G-28 by subtracting the estimated selected 
petitions from estimated total petitions.
---------------------------------------------------------------------------

    \33\ Calculation: 192,918 total petitions filed-97,198 selected 
petitions = 95,720 unselected petitions.
    \34\ Calculation: 192,918 * 25 percent = 47,651 Form I-907.
    \35\ Calculation: 192,918 * 75 percent = 145,431 Form G-28.
    \36\ Calculation: 47,651 Forms I-907- 24,008 Forms I-907 = 
23,643 Forms I-907 received with unselected petitions.
    \37\ Calculation: 145,431 Forms G-28-73,272 Forms G-28 = 72,158 
Forms G-28 received with unselected petitions.
---------------------------------------------------------------------------



                              Table 5--Annual Population of the H-1B Filing Process
                                            [Based on 5 year average]
----------------------------------------------------------------------------------------------------------------
                                                          Total petitions        Selected          Unselected
                       Petitions                               filed            petitions          petitions
----------------------------------------------------------------------------------------------------------------
                                          Registrations--Not Applicable
----------------------------------------------------------------------------------------------------------------
Form I-129.............................................            192,918             97,198             95,720
Form I-907.............................................             47,651             24,008             23,643
Form G-28..............................................            145,431             73,272             72,158
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.


                Table 6--Estimated Annual Population Under the Proposed Registration Requirement
----------------------------------------------------------------------------------------------------------------
                                                               Total
                                                           registrations         Selected          Unselected
                                                               filed          registrations      registrations
----------------------------------------------------------------------------------------------------------------
                                                  Registrations
----------------------------------------------------------------------------------------------------------------
                                                                   192,918             97,198             95,720
----------------------------------------------------------------------------------------------------------------
                       Petitions                         Total forms filed       Selected          Unselected
                                                                                petitions          petitions
----------------------------------------------------------------------------------------------------------------
Form I-129.............................................             97,198             97,198                  0
Form I-907.............................................             24,008             24,008                  0
Form G-28 *............................................             73,272             73,272                  0
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
* Refers specifically to Form G-28 submitted with a Form I-129 petition. DHS notes that under the proposed
  registration requirement, accredited representatives would be required to upload Form G-28 during registration
  and provides more detail later on in this analysis.

    Table 6 presents populations DHS anticipates for the proposed 
registration process based on comparable historical data from Table 5. 
DHS assumes the historical five-year average of 192,918 as seen in 
Table 5 as a reasonable estimate for the number of total registrations 
that would be submitted in an annual filing period.\38\ DHS also 
assumes that the historical five-year averages of selected and 
unselected petitions would be a reasonable estimate for the total 
number of registrations that are selected and not selected.
---------------------------------------------------------------------------

    \38\ DHS acknowledges the possibility that certain employers who 
currently decide against filing an H-1B petition may choose to file 
a registration under the proposal since the cost is much less. 
However, at this time DHS is not able to forecast this scenario with 
statistical validity. Therefore, for this purpose of this analysis 
DHS has estimated the registration population that would parallel 
the current petitioner population.
---------------------------------------------------------------------------

    DHS estimates that 192,918 H-1B cap-subject registrations would be 
submitted annually and USCIS would select 97,198 registrations. Those 
with selected registrations would then be eligible to file, during an 
associated filing period, the H-1B cap-subject petition on behalf of 
the specific beneficiary named in the selected registration for that 
fiscal year. Therefore, DHS assumes under the proposed registration 
process, 97,198 petitions would result from the 97,198 selected 
registrants. Of the petitions resulting from selected registrations, 
DHS anticipates 24,008 (25 percent) petitions would include premium 
processing (Form I-907) and 73,272 (75 percent) petitions would include

[[Page 62424]]

representation by a lawyer or accredited representative (Form G-
28).\39\ Those registrants who are not selected would not be eligible 
to file an H-1B cap-subject petition and therefore DHS does not 
estimate any petition volume for unselected registrations under the 
proposed registration requirement. DHS welcomes any public comments on 
the estimates provided for the registration or the methodology used to 
derive these estimates.
---------------------------------------------------------------------------

    \39\ Based on the five-year averages from Table 4, DHS estimates 
24 percent of selected petitions would include Form I-907 and 76 
percent of selected petitions would include Form G-28.
---------------------------------------------------------------------------

b. Estimated Population Impacted by the Proposed Selection Process
i. Selected Advanced Degree Exemption Petitions in the Current 
Selection Process
    As discussed in section 4, DHS uses historical filing data of H-1B 
cap-subject petitions to estimate future registration populations. 
Table 7 shows historical filing data for H-1B cap-subject petitions 
categorized by regular cap and advanced degree exemption receipts. 
USCIS received an annual average of 192,918 H-1B cap-subject petitions. 
DHS calculates 71 percent \40\ of petitions (137,017) were filed under 
the regular cap and 29 percent \41\ of petitions (55,900) were filed 
under the advanced degree exemption. Therefore, DHS estimates that 
USCIS would receive a total of 192,918 registrations annually 
consisting of 137,017 registrations under the regular cap and 55,900 
registrations under the advanced degree exemption.
---------------------------------------------------------------------------

    \40\ Calculation: 137,017 regular/192,918 Form I-129 petitions * 
100 = 71 percent (rounded).
    \41\ Calculation: 55,900 advanced degree/192,918 Form I-129 
petitions * 100 = 29 percent (rounded).

                  Table 7--H-1B Petitions Received by Regular Cap and Advanced Degree Exemption
                                                 [FY 2013-2017]
----------------------------------------------------------------------------------------------------------------
                                                                                                   Number of
                                                                                Number of          petitions
                      Fiscal year                          Number of all        petitions           received
                                                          petitions filed   received (regular   (advanced degree
                                                                                   cap)            exemption)
----------------------------------------------------------------------------------------------------------------
2013...................................................            124,130             93,489             30,641
2014...................................................            172,581            132,063             40,518
2015...................................................            232,973            182,249             50,724
2016...................................................            236,444            166,206             70,238
2017...................................................            198,460            111,080             87,380
                                                        --------------------------------------------------------
    5-year average.....................................            192,918            137,017             55,900
----------------------------------------------------------------------------------------------------------------
Source: USCIS Service Center Operations (SCOPS), June, 2017.

    Additionally, DHS uses 55,900 petitions in this analysis as a 
volume estimate of beneficiaries who have a master's degree or higher 
from a U.S. institution of higher education. Anecdotal evidence 
suggests that very few petitions do not align with the education 
requirements of the H-1B regular cap or advanced degree exemption under 
which the petition was submitted.
    Under the current process, when the number of cap-subject petitions 
filed with USCIS during the first five days that such petitions may be 
filed exceeds the numerical limits, a certain number of petitions 
projected as needed to meet the 20,000 advanced degree exemption are 
randomly selected first from the 55,900 advanced degree petitions 
eligible for the advanced degree exemption.\42\ Of the remaining 
172,918 petitions, 35,900 (21 percent) of H-1B beneficiaries with a 
master's degree or higher from a U.S. institution of higher education 
remain in the pool to be selected in the 65,000 regular cap limit.\43\ 
Then, USCIS randomly selects a certain number of petitions projected as 
needed to meet the 65,000 regular cap limit from the remaining pool, 
which includes H-1B beneficiaries with bachelor's degrees and 
beneficiaries with a master's or higher degree from a U.S. institution 
of higher education not selected under the advanced degree exemption. 
DHS estimates that an additional 13,495 petitions otherwise eligible 
for the advanced degree exemption but not selected under the advanced 
degree exemption would be randomly selected in the regular cap.\44\ 
Therefore, USCIS currently selects an estimated total of 33,495 
petitions filed for beneficiaries with a master's or higher degree from 
a U.S. institution of higher education, which accounts for 17 percent 
of the 192,918 Form I-129 petitions.\45\
---------------------------------------------------------------------------

    \42\ DHS uses the mandated numerical limitations (65,000 for 
regular cap and 20,000 for advanced degree exemption) to demonstrate 
the statistical validity in the descriptions of selected advanced 
degree petitions in the current and proposed selection process.
    \43\ Calculation: 192,918 Form I-129 H-1B cap-subject petitions-
20,000 advanced degree = 172,918 advanced degree and regular; 
Calculation: 55,900 advanced degree-20,000 advanced degree = 35,900 
advanced degree; Calculation: 35,900 advanced degree/172,918 Form I-
129 H-1B cap-subject petitions * 100 = 21 percent (rounded).
    \44\ Calculation: 65,000 regular cap limit * 21 percent = 13,495 
advanced degree petitions.
    \45\ Calculation: 33,495 advanced degree/192,918 Form I-129 H-1B 
cap-subject petitions * 100 = 17 percent (rounded).
---------------------------------------------------------------------------

ii. Selected Advanced Degree Exemption Petitions in the Proposed 
Selection Process
    Under the proposed change to the H-1B cap-subject selection 
process, those seeking to file an H-1B cap-subject petition would have 
to submit an electronic registration for each beneficiary. Only those 
with selected registrations would be eligible to file an H-1B cap-
subject petition during an associated filing period for that fiscal 
year. As previously stated, DHS continues to assume 192,918 
registrations would be received annually. Under the proposed selection 
process, USCIS would first select a certain number of registrations 
projected as needed to meet the 65,000 regular cap limit from the 
192,918 registrations. All 55,900 H-1B beneficiaries with a master's or 
higher degree from a U.S. institution of higher education (29 percent) 
would therefore be included in the pool for selection. DHS estimates 
that up to 18,835 advanced degree

[[Page 62425]]

registrations could be selected during the selection for the regular 
cap.\46\
---------------------------------------------------------------------------

    \46\ Calculation: 65,000 regular cap limit * 29 percent = 18,835 
advanced degree petitions.
---------------------------------------------------------------------------

    Next, USCIS would select a certain number of registrations 
projected to meet the 20,000 advanced degree exemption from the 
remaining pool of 37,065 advanced degree registrations.\47\ In total, 
USCIS would select an estimated 38,835 registrations for petitioners 
seeking to file H-1B petitions under the advanced degree exemption.\48\ 
These registrations would account for 20 percent of the 192,918 
registrations.\49\ Therefore, DHS estimates USCIS could accept up to 
5,340 (or 16 percent) \50\ more H-1B cap-subject petitions annually for 
beneficiaries with a master's or higher degree from a U.S. institution 
of higher education.\51\
---------------------------------------------------------------------------

    \47\ Calculation: 55,900 advanced degree-18,835 advanced degree 
= 37,065 advanced degree.
    \48\ Calculation: 18,835 selected advanced degree petitions + 
20,000 advanced degree petitions = 38,835 total advanced degree 
petitions selected.
    \49\ Calculation: 38,835 advanced degree petitions/192,918 
registrations = 20 percent (rounded).
    \50\ Calculation: (38,835 (proposed advanced degree petitions)-
33,495 (current advanced degree petitions))/33,495 (current advanced 
degree petitions) * 100 = 16 percent.
    \51\ Calculation: 38,835 proposed advanced degree petitions-
33,495 current advanced degree petitions = 5,340 additional 
petitions.
---------------------------------------------------------------------------

    DHS welcomes any public comments on the estimates provided for the 
numbers of randomly selected registrations for petitioners seeking to 
file petitions that may be counted under the regular cap and the 
advanced degree exemption under this proposed rule.
5. Costs
    DHS estimates costs specifically for selected and unselected 
petitioners between the current H-1B petition process and the proposed 
registration environment because the impact for each population is 
different. Current costs to selected petitioners are an aggregate of 
filing fees associated with each H-1B cap-subject petition, mailing 
cost, and the opportunity cost of time to complete all associated 
forms. Current costs to unselected petitioners are just the opportunity 
cost of time to complete forms and mail the petition since USCIS 
returns the H-1B cap-subject petition and filing fees to unselected 
petitioners. The only difference between total current costs for 
selected and unselected petitioners in an annual filing period consists 
of fees returned to unselected petitioners.
    The proposed registration requirement would pose additional 
opportunity costs of time to all petitioners to complete the required 
registration, but relieve petitioners with unselected registrations 
from the opportunity cost associated with completing an entire H-1B 
cap-subject petition. Therefore petitioners with selected registrations 
would face an additional cost and petitioners with unselected 
registrations would experience cost savings. Specifically, petitioners 
with selected registrations would face an additional opportunity cost 
of time to complete the required registration, as well as the current 
filing fees and opportunity costs of time to complete and file H-1B 
cap-subject petitions. Petitioners with unselected registrations would 
only experience the opportunity cost of time to complete the required 
registration.
    The government would incur costs associated with developing and 
maintaining the electronic registration system on its website. 
Petitioners may also incur costs associated with the registration 
selection process that would increase the number of H-1B beneficiaries 
with a master's or higher degree from a U.S. institution of higher 
education in the form of higher salaries that might be paid to 
beneficiaries with advanced degrees from a U.S. institution of higher 
education. In order to determine the costs and cost savings of this 
proposed rule, DHS first estimates the current costs of completing and 
filing an H-1B petition.
a. Current Costs To Complete and File Form I-129 Petitions
    Currently, an employer seeking to file a petition on behalf of an 
H-1B worker must complete and file Form I-129. Form I-129 is estimated 
to take 2.26 hours to complete per petition and includes a filing fee 
of $460.\52\ Filing the Form I-129 petition includes the H 
Classification supplement and the H-1B and H-1B1 Data Collection and 
Filing Fee Exemption Supplement, which are estimated to take 2 hours 
and 1 hour per supplement to complete, respectively. Therefore, it is 
estimated to take a total of 5.26 hours to complete and file Form I-
129. Petitioners may also choose or be required to complete the 
following forms:
---------------------------------------------------------------------------

    \52\ DHS recognizes there are other fees associated with an H-1B 
petition, such as the ACWIA Fee, the Fraud Fee and Public Law 114-
113 fee. These fees generally vary depending on the size of the 
petitioning entity. Therefore, DHS has not specifically included 
these fees in the calculations of H-1B cap-subject petitions though 
DHS acknowledges these fees are statutorily required.
---------------------------------------------------------------------------

     Form I-907 is estimated to take 0.5 hours to complete with 
a filing fee of $1,225, and/or
     Form G-28 is estimated to take 0.88 hours to complete and 
does not have a fee.
    In order to estimate the opportunity costs of time in completing 
and filing Form I-129, and if necessary, Form I-907 or Form G-28, DHS 
assumes that a petitioner will use a human resources (HR) specialist, 
an in-house lawyer, or an outsourced lawyer to prepare Form I-129 
petitions.\53\ DHS uses the historical filings of Forms I-907 and Forms 
G-28 submitted with H-1B petitions to estimate the distribution of form 
submissions amongst type of petition preparer.
---------------------------------------------------------------------------

    \53\ USCIS limited its analysis to HR specialists, in-house 
lawyers, and outsourced lawyers to present estimated costs. However, 
USCIS understands that not all entities employ individuals with 
these occupations and, therefore, recognizes equivalent occupations 
may also prepare and file these petitions.
---------------------------------------------------------------------------

    In section 4 of this analysis, DHS estimates that 75 percent of H-
1B petitions were completed and filed by lawyers or other accredited 
representatives based on the submissions of Forms G-28. Table 5 
presents the total number of Form G-28 accompanying total petitions, 
selected petitions and unselected petitions. DHS reasonably assumes the 
total number of Form G-28 represents the number of H-1B petitions that 
were completed and filed by lawyers or other accredited representatives 
and presents this in Table 8. DHS estimates the remaining petitions are 
completed and filed by HR specialists or other equivalent occupation. 
DHS estimates of total petitions filed, 47,487 \54\ petitions were 
filed by HR specialists or other equivalent occupation. Of selected 
petitions, DHS estimates 23,926 \55\ petitions were filed by HR 
specialists or other equivalent occupation. Of unselected petitions, 
DHS estimates 23,562 \56\ petitions were filed by HR specialists or 
other equivalent occupation. Table 8 summarizes the estimated 
population of H-1B petition submissions based on the type of petition 
preparer.
---------------------------------------------------------------------------

    \54\ Calculation: 192,918-145,431 = 47,487 petitions prepared by 
HR specialists.
    \55\ Calculation: 97,198-73,272 = 23,926 selected petitions 
prepared by HR specialists.
    \56\ Calculation: 95,720-72,158 = 23,562 unselected petitions 
prepared by HR specialists.

[[Page 62426]]



             Table 8--Summary of the Population of H-1B Petition Submissions Based on Preparer Type
----------------------------------------------------------------------------------------------------------------
                                                                                     Selected       Unselected
                        Type of preparer                            Total filed      petitions       petitions
----------------------------------------------------------------------------------------------------------------
All H-1B petitions..............................................         192,918          97,198          95,720
H-1B petitions filed by lawyers or accredited representatives...         145,431          73,272          72,158
H-1B petitions filed by HR specialists or other equivalent                47,487          23,926          23,562
 occupation.....................................................
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.

    The relevant wage is currently $31.84 \57\ per hour for an HR 
specialist and $68.22 \58\ per hour for an in-house lawyer. DHS 
accounts for worker benefits when estimating the opportunity cost of 
time by calculating a benefits-to-wage multiplier using the Department 
of Labor, BLS report detailing the average employer costs for employee 
compensation for all civilian workers in major occupational groups and 
industries. DHS estimates that the benefits-to-wage multiplier is 1.46 
and, therefore, is able to estimate the full opportunity cost per 
applicant, including employee wages and salaries and the full cost of 
benefits such as paid leave, insurance, and retirement.\59\ DHS 
multiplied the average hourly U.S. wage rate for HR specialists and 
lawyers by 1.46 to account for the full cost of employee benefits, for 
a total of $46.49 \60\ per hour for an HR specialist and $99.60 \61\ 
per hour for an in-house lawyer. DHS recognizes that a firm may choose, 
but is not required, to outsource the preparation of these petitions 
and, therefore, has presented two wage rates for lawyers. To determine 
the full opportunity costs if a firm hired an outsourced lawyer, DHS 
multiplied the average hourly U.S. wage rate for lawyers by 2.5 for a 
total of $170.55 \62\ to approximate an hourly billing rate for an 
outsourced lawyer.\63\ DHS requests comment on the estimated hourly 
billing rate for an outsourced lawyer and any supporting data that can 
be provided for the estimate.
---------------------------------------------------------------------------

    \57\ Bureau of Labor Statistics, U.S. Department of Labor, 
``Occupational Employment Statistics, May 2017, Human Resources 
Specialist'': https://www.bls.gov/oes/2017/may/oes131071.htm. 
Visited April 13, 2018.
    \58\ Bureau of Labor Statistics, U.S. Department of Labor, 
``Occupational Employment Statistics, May 2017, Lawyers'': https://www.bls.gov/oes/2017/may/oes231011.htm. Visited April 13, 2018.
    \59\ The benefits-to-wage multiplier is calculated as follows: 
(Total Employee Compensation per hour)/(Wages and Salaries per 
hour). See Economic News Release, U.S. Dep't of Labor, Bureau of 
Labor Statistics, 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 (December 
2017), available at https://www.bls.gov/news.release/archives/ecec_03202018.pdf (viewed April 2018). The ECEC measures the average 
cost to employers for wages and salaries and benefits per employee 
hour worked.
    \60\ Calculation: $31.84 * 1.46 = $46.49 total wage rate for HR 
specialist.
    \61\ Calculation: $68.22 * 1.46 = $99.60 total wage rate for in-
house lawyer.
    \62\ Calculation: $68.22 * 2.5 = $170.55 total wage rate for an 
outsourced lawyer.
    \63\ The DHS analysis in, ``Exercise of Time-Limited Authority 
To Increase the Fiscal Year 2018 Numerical Limitation for the H-2B 
Temporary Nonagricultural Worker Program'' (May 31, 2018), available 
at https://www.federalregister.gov/documents/2018/05/31/2018-11732/exercise-of-time-limited-authority-to-increase-the-fiscal-year-2018-numerical-limitation-for-the, used a multiplier of 2.5 to convert 
in-house attorney wages to the cost of outsourced attorney wages. 
DHS believes the methodology used in the Final Small Entity Impact 
Analysis remains sound for using 2.5 as a multiplier for outsourced 
labor wages in this rule.
---------------------------------------------------------------------------

    Based on the time burden and relevant wages, the total opportunity 
costs of time to complete Form I-129 is $244.52 per petition \64\ and 
for Form I-907 is $23.24 \65\ per petition if an HR specialist files. 
Although USCIS only requires petitioners to file Form I-129 and 
supplemental forms on behalf of an H-1B worker, DHS includes the 
opportunity cost of time for Form I-907 since some petitioners may file 
for premium processing. The opportunity cost of time for an in-house 
lawyer to complete Form I-129 is $523.90,\66\ Form I-907 is $49.80,\67\ 
and Form G-28 is $87.65.\68\ The opportunity cost of time for an 
outsourced lawyer to complete Form I-129 is $897.09,\69\ Form I-907 is 
$85.28,\70\ and Form G-28 is $150.08.\71\ DHS assumes that only Form I-
129 petitions completed by in-house lawyers and outsourced lawyers 
would also complete Form G-28.
---------------------------------------------------------------------------

    \64\ Calculation: $46.49 (HR wage) * 5.26 hours (time to 
complete Form I-129) = $244.52.
    \65\ Calculation: $46.49 (HR wage) * 0.5 hour (time to complete 
Form I-907) = $23.24.
    \66\ Calculation: $99.60 (in-house lawyer wage) * 5.26 hours 
(time to complete Form I-129) = $523.90.
    \67\ Calculation: $99.60 (in-house lawyer wage) * 0.5 hour (time 
to complete Form I-907) = $49.80.
    \68\ Calculation: $99.60 (in-house lawyer wage) * 0.88 hour 
(time to complete Form G-28) = $87.65.
    \69\ Calculation: $170.55 (outsourced lawyer wage) * 5.26 hours 
(time to complete Form I-129) = $897.09.
    \70\ Calculation: $170.55 (outsourced lawyer wage) * 0.5 hour 
(time to complete Form I-907) = $85.28.
    \71\ Calculation: $170.55 (outsourced lawyer wage) * 0.88 hour 
(time to complete Form G-28) = $150.08.
---------------------------------------------------------------------------

    Based on the calculated opportunity costs of time, the total cost 
to complete and file Form I-129 is $704.52 \72\ and Form I-907 is 
$1,248.24 \73\ if an HR specialist files. The total cost to complete 
and file Form I-129 is $983.90,\74\ Form I-907 is $1,274.80,\75\ and 
Form G-28 is $87.65 if an in-house lawyer files. The total cost to 
complete and file Form I-129 is $1,357.09,\76\ Form I-907 is 
$1,310.28,\77\ and Form G-28 is $150.08 if an outsourced lawyer files.
---------------------------------------------------------------------------

    \72\ Calculation: $244.52 opportunity cost + $460 Form I-129 
filing fee = $704.52 total cost per Form I-129 if filed by an HR 
specialist.
    \73\ Calculation: $23.24 opportunity cost + $1,225 Form I-907 
filing fee = $1,248.24 total cost per Form I-907 if filed by an HR 
specialist.
    \74\ Calculation: $523.90 opportunity cost + $460 filing fee = 
$983.90 total cost per Form I-129 if filed by an in-house lawyer.
    \75\ Calculation: $49.80 opportunity cost + $1,225 filing fee = 
$1,274.80 total cost per Form I-907 if filed by an in-house lawyer.
    \76\ Calculation: $897.09 opportunity cost + $460 = $1,357.09 
total cost per Form I-129 if filed by an outsourced lawyer.
    \77\ Calculation: $85.28 opportunity cost + $1,225 = $1,310.28 
total cost per Form I-907 if filed by an outsourced lawyer.
---------------------------------------------------------------------------

    As seen in Table 8, DHS estimates that 75 percent of selected 
petitions (73,272) were completed and filed by lawyers or other 
accredited representatives from the submitted Forms G-28. DHS assumes 
the remaining petitions (23,926 or 25 percent) are completed and filed 
by HR specialists. In order to determine the distribution of Forms I-
907 among types of petition preparer, DHS uses historical filing data 
of Form I-907 submitted with H-1B petitions to estimate the number of 
Forms I-907 that are completed by HR specialists or lawyers.
    Table 9 shows the number of Forms I-907 received with selected H-1B 
cap-subject petitions from fiscal years 2013 to 2017 categorized by 
accompaniment of a Form G-28. As previously stated, DHS assumes that 
only in-house lawyers and outsourced lawyers would complete Form G-28. 
Therefore, Form I-907 petitions received with a Form G-28 are assumed 
to be completed by a lawyer. Table 9 shows that among selected 
petitions over the last 5 years, 21,401 Forms I-907 (89 percent) \78\ 
have been completed and filed by lawyers

[[Page 62427]]

and 2,606 Forms I-907 (11 percent) \79\ have not. Therefore, DHS 
estimates that 89 percent of Forms I-907 would be completed by lawyers 
and 11 percent would be completed by HR specialists for this analysis.
---------------------------------------------------------------------------

    \78\ Calculation: 21,401 petitions received with a Form I-907 
and a Form G-28/24,008 Total Forms I-907 = 89 percent (rounded).
    \79\ Calculation: 2,606 petitions received with a Form I-907 and 
without a Form G-28/24,008 Total Forms I-907 = 11 percent (rounded).

 Table 9--Number of H-1B Petitions Received for Premium Processing (Form I-907) Filed by a Lawyer or Accredited
                                           Representative (Form G-28)
                                                 [FY 2013-2017]
----------------------------------------------------------------------------------------------------------------
                                                                                                  Total Forms I-
                                                                     Number of       Number of     907 received
                                                                    Forms I-907     Forms I-907    with selected
                           Fiscal year                               received      received with     H-1B Cap-
                                                                  without a Form    a Form G-28       Subject
                                                                       G-28                          Petitions
----------------------------------------------------------------------------------------------------------------
2013............................................................           2,903          21,828          24,731
2014............................................................           2,800          23,060          25,860
2015............................................................           2,653          23,849          26,502
2016............................................................           3,652          26,970          30,622
2017............................................................           1,024          11,300          12,324
                                                                 -----------------------------------------------
    5-year average..............................................           2,606          21,401          24,008
----------------------------------------------------------------------------------------------------------------
Source: USCIS Office of Performance and Qualify (OPQ), Performance Analysis and External Reporting (PAER),
  January 2018.

    For selected and unselected petitions, DHS presents costs by type 
of petition preparer. DHS estimates HR specialists would file 25 
percent of Form I-129 H-1B petitions and 11 percent of Forms I-907. 
Since DHS uses two wages for lawyers, DHS presents these costs as if 
all in-house lawyers filed or all outsourced lawyers filed 75 percent 
of Form I-129 H-1B petitions and 89 percent of Forms I-907 (along with 
Form G-28). In reality, the costs estimated for lawyers are likely to 
be some distribution of the two ranges presented. To present total 
costs for an annual filing period, DHS aggregates HR specialist costs 
and lawyer costs, using in-house lawyer costs for a lower bound and 
outsourced lawyers as an upper bound.
i. Current Costs to Selected Petitioners
    Table 10 shows the current total cost of filed petitions that were 
selected during the H-1B cap-subject selection process by type of 
petition preparer. To calculate mailing costs, DHS uses the shipping 
prices of United States Postal Service (USPS) Domestic Priority Mail 
Express Flat Rate Envelopes, which is currently priced at $25.80 per 
envelope.\80\
---------------------------------------------------------------------------

    \80\ For the purposes of this analysis, we assume that 
petitioners would use the USPS ``Domestic Priority Mail Express Flat 
Rate Envelope'' shipping at the retail price to ensure delivery of 
Form I-129 petitions to USCIS. USCIS also assumes that the petition 
weighs five pounds and ships locally or in zone 1 or 2. However, 
USCIS acknowledges that a petitioner may choose other means of 
shipping. U.S. Postal Service, Price List: https://pe.usps.com/text/dmm300/Notice123.htm#_c011. Visited February 23, 2018.
---------------------------------------------------------------------------

    Under current procedures for H-1B cap-subject petitions, DHS 
estimates cost to complete and file selected Form I-129 H-1B cap-
subject petitions prepared by HR specialists is $16.9 million,\81\ Form 
I-907 is $3.3 million,\82\ and mailing cost is $617,280 \83\ (an 
aggregate $20.7 million). Similarly, DHS estimates the cost to complete 
and file selected Form I-129 H-1B cap-subject petitions prepared by in-
house lawyers is $72.1 million,\84\ Form I-907 is $27.2 million,\85\ 
Form G-28 is $6.4 million,\86\ and mailing cost is $1.9 million \87\ 
(an aggregate $107.6 million). If prepared by an outsourced lawyer, DHS 
estimates the cost to complete and file selected Form I-129 H-1B cap-
subject petitions is $99.4 million,\88\ Form I-907 is $28.0 
million,\89\ Form G-28 is $11.0 million,\90\ and mailing cost is $1.9 
million \91\ (an aggregate $140.3 million).
---------------------------------------------------------------------------

    \81\ Calculation: 23,926 Forms I-129 filed by HR specialists * 
$704.52 total cost per petition = $ $16,856,064 (rounded).
    \82\ Calculation: 2,606 Forms I-907 (11 percent of 24,008 Forms 
I-907) * $1,248.24 total cost per Form I-907 = $3,252,913 (rounded).
    \83\ Calculation: 23,926 Forms I-129 filed by HR specialists * 
$25.80 mailing cost = $617,280 (rounded).
    \84\ Calculation: 73,272 Forms I-129 filed by lawyers * $983.90 
total cost if filed by an in-house lawyer = $72,092,714 (rounded).
    \85\ Calculation: 21,401 Forms I-907 (89 percent of 24,008 Forms 
I-907) * $1,274.80 total cost if filed by an in-house lawyer = 
$27,281,995 (rounded).
    \86\ Calculation: 73,272 Forms G-28 filed by lawyers * $87.65 
cost if filed by an in-house lawyer = $6,422,326 (rounded).
    \87\ Calculation: 73,272 Forms I-129 filed by lawyers * $25.80 
mailing cost = $1,890,428 (rounded).
    \88\ Calculation: 73,272 Forms I-129 filed by lawyers * 
$1,357.09 total cost if filed by an outsourced lawyer = $99,437,241 
(rounded).
    \89\ Calculation: 21,401 Forms I-907 (89 percent of 24,008 Forms 
I-907) * $1,310.28 total cost if filed by an outsourced lawyer = 
$28,041,302 (rounded).
    \90\ Calculation: 73,272 Forms G-28 filed by lawyers * $150.08 
cost if filed by an outsourced lawyer = $10,996,722 (rounded).
    \91\ Calculation: 73,272 Forms I-129 filed by lawyers * $25.80 
mailing cost = $1,890,428 (rounded).

  Table 10--Estimated Annual Costs to Selected Petitioners Under Current H-1B Cap-Subject Procedure by Preparer
                                                      Type
                               [Includes opportunity cost of time and filing fees]
----------------------------------------------------------------------------------------------------------------
                                                                                     In-house       Outsourced
                                                                   HR specialist      lawyer          lawyer
----------------------------------------------------------------------------------------------------------------
Form I-129......................................................     $16,856,064     $72,092,714     $99,437,241
Form I-907......................................................       3,252,913      27,281,995      28,041,302
Form G-28.......................................................  ..............       6,422,326      10,996,722
Mailing Cost....................................................         617,280       1,890,428       1,890,428
                                                                 -----------------------------------------------

[[Page 62428]]


    Cost........................................................      20,726,257     107,687,463     140,365,693
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.

ii. Current Costs to Unselected Petitioners
    Table 11 shows the estimated costs for the H-1B petitioners whose 
cap-subject petitions are not selected for adjudication under current 
procedures for H-1B cap-subject petitions. The fees for these 
unselected petitions are returned to petitioners and, therefore, 
petitioners with unselected petitions incur costs only in the 
opportunity costs of time for completing the appropriate forms and 
mailing costs for those cap-subject petitions that were not selected. 
From Table 8 of this analysis, DHS estimates that 72,158 unselected 
Form I-129 H-1B cap-subject petitions were completed and filed by 
lawyers or other accredited representatives from the submitted Forms G-
28. As seen in Table 8, DHS assumes the remaining H-1B cap-subject 
petitions (23,562) are completed and filed by HR specialists. DHS also 
estimates in Table 5 that 23,643 Forms I-907 were filed with H-1B cap-
subject petitions that were not selected. USCIS continues to assume of 
Forms I-907 that were filed with H-1B cap-subject petitions that were 
not selected 89 percent are completed by lawyers and 11 percent are 
completed by HR specialists.
    DHS estimates the annual cost to complete unselected Form I-129 H-
1B cap-subject petitions prepared by HR specialists is $5.8 
million,\92\ Forms I-907 is $60,447,\93\ and mailing costs is $607,900 
\94\ (an aggregate $6.4 million). DHS estimates the annual cost to 
complete unselected Form I-129 H-1B cap-subject petitions prepared by 
in-house lawyers is $37.8 million,\95\ Form I-907 is $1 million,\96\ 
Form G-28 is $6.3 million,\97\ and mailing costs is $1.9 million \98\ 
(an aggregate $47.0 million). If prepared by an outsourced lawyer, DHS 
estimates the annual cost to complete unselected Form I-129 H-1B cap-
subject petitions is $64.7 million,\99\ Form I-907 is $1.8 
million,\100\ Form G-28 is $10.8 million,\101\ and mailing costs is 
$1.9 million \102\ (an aggregate $79 million).
---------------------------------------------------------------------------

    \92\ Calculation: 23,562 Forms I-129 filed by HR specialists * 
$244.52 opportunity cost = $5,761,380 (rounded).
    \93\ Calculation: 2,601 Forms I-907 (11 percent of 23,643 Forms 
I-907) * $23.24 opportunity cost = $60,447 (rounded).
    \94\ Calculation: 23,562 Forms I-129 filed by HR specialists * 
$25.80 mailing cost = $607,900 (rounded).
    \95\ Calculation: 72,158 Forms I-129 filed by lawyers * $523.90 
opportunity cost if filed by an in-house lawyer = $37,803,576 
(rounded).
    \96\ Calculation: 21,042 Forms I-907 (89 percent of 23,643 Forms 
I-907) * $49.80 opportunity cost if filed by an in-house lawyer = 
$1,047,892 (rounded).
    \97\ Calculation: 72,158 Forms G-28 filed by lawyers * $87.65 
opportunity cost if filed by an in-house lawyer = $6,324,649 
(rounded).
    \98\ Calculation: 72,158 Forms I-129 filed by lawyers * $25.80 
mailing cost = $1,861,676 (rounded).
    \99\ Calculation: 72,158 Forms I-129 filed by lawyers * $897.09 
opportunity cost if filed by an outsourced lawyer = $64,732,220 
(rounded).
    \100\ Calculation: 21,042 Forms I-907 (89 percent of 23,643 
Forms I-907) * $85.28 opportunity cost if filed by an outsourced 
lawyer = $1,794,462 (rounded).
    \101\ Calculation: 72,158 Forms G-28 filed by lawyers * $150.08 
opportunity cost if filed by an outsourced lawyer = $10,829,473 
(rounded).
    \102\ Calculation: 72,158 Forms I-129 filed by lawyers * $25.80 
mailing cost = $1,861,676 (rounded).

 Table 11--Estimated Annual Costs to Unselected Petitioners Under Current H-1B Cap-Subject Procedure by Preparer
                                                      Type
                          [Includes opportunity cost of time and excludes filing fees]
----------------------------------------------------------------------------------------------------------------
                                                                                     In-house       Outsourced
                                                                   HR specialist      lawyer          lawyer
----------------------------------------------------------------------------------------------------------------
Form I-129......................................................      $5,761,380     $37,803,576     $64,732,220
Form I-907......................................................          60,447       1,047,892       1,794,462
Form G-28.......................................................  ..............       6,324,649      10,829,473
Mailing Cost....................................................         607,900       1,861,676       1,861,676
                                                                 -----------------------------------------------
    Cost........................................................       6,429,727      47,037,793      79,217,831
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.

iii. Total Current Costs for Selected and Unselected Petitioners in an 
Annual Filing Period
    As discussed in Table 8 of this analysis, DHS estimates the 
distribution of HR specialists and lawyers based on historical filings. 
DHS estimates that 75 percent of H-1B petitions are prepared by lawyers 
or other accredited representatives, and 25 percent are completed and 
prepared by HR specialists or other equivalent occupation. Therefore in 
order to present total costs for an annual filing period, DHS 
aggregates HR specialist costs and lawyer costs. Since DHS uses two 
wages for lawyers, DHS presents lawyer costs as if all in-house lawyers 
filed or all outsourced lawyers filed. DHS assumes a reasonable lower 
bound estimate for annual filing costs would be HR specialist costs 
added with in-house lawyers. Similarly, DHS assumes an upper bound 
estimate for annual filing costs would be reasonably estimated by 
combining HR specialist costs added with outsourced lawyers. These 
lower and upper bound estimates reflect the range of total current 
petitioner costs associated with H-1B cap-subject process in an annual 
filing period.
    Table 12 summarizes the estimated lower bound and upper bound for 
selected petitioners and unselected petitioners in an annual filing 
period.

[[Page 62429]]



 Table 12--Estimated Costs for All (Selected and Unselected) Petitioners
                       in an Annual Filing Period
------------------------------------------------------------------------
                                            Lower bound     Upper bound
             Petitioner type                    \a\             \b\
------------------------------------------------------------------------
Selected Petitioners....................    $128,413,720    $161,091,950
Unselected Petitioners..................      53,467,520      85,647,558
                                         -------------------------------
    All Petitioners.....................     181,881,240     246,739,508
------------------------------------------------------------------------
Source: USCIS analysis.
Note: DHS estimates that 75 percent of H-1B petitions are prepared by
  lawyers or other accredited representatives and 25 percent are
  completed and prepared by HR specialists or other equivalent
  occupation in an annual filing period. Therefore in order to present
  total costs for an annual filing period, DHS aggregates HR specialist
  costs and accredited representative costs.
\a\ HR specialist cost + in-house lawyer cost = Total costs in annual
  filing period.
\b\ HR specialist cost + outsourced lawyer cost = Total costs in an
  annual filing period.

    As seen in Table 12, the total current costs for selected 
petitioners in an annual filing period ranges from $128.4 \103\ million 
to $161.1 million,\104\ depending on who petitioners use to prepare the 
petition. The total current costs for unselected petitioners in an 
annual filing period ranges from $53.5 \105\ million to $85.6 
million,\106\ again depending on who petitioners use to prepare the 
petition. Fees returned to unselected petitioners make up the 
difference between total current costs for selected and unselected 
petitioners in an annual filing period.
---------------------------------------------------------------------------

    \103\ Calculation: $20,726,257 HR specialist cost + $107,687,463 
in-house lawyer cost = $128,413,720 total annual cost (rounded).
    \104\ Calculation: $20,726,257 HR specialist cost + $140,365,693 
outsourced lawyer cost = $161,091,950 total annual cost (rounded).
    \105\ Calculation: $6,429,727 HR specialist cost + $47,037,793 
in-house lawyer cost = $53,467,520 total annual cost (rounded).
    \106\ Calculation: $6,429,727 HR specialist cost + $79,217,831 
in-house lawyer cost = $85,647,558 total annual cost (rounded).
---------------------------------------------------------------------------

    For all petitioners, DHS estimates the total current cost to 
complete and file an H-1B petition for an annual filling period ranges 
from $181.9 million to $246.7 million, using lower bound and upper 
bound calculations. DHS welcomes public comments on the methodology 
used to calculate the current costs to petitioners in filing an H-1B 
cap-subject petition.
b. Costs From the Proposed Registration Requirement
    In order to accurately describe the proposed requirements, and 
distinguish between the petitioner under the current H-1B process, DHS 
will use the term registrants when describing impacts to employers 
intending to petition for H-1B cap-subject beneficiaries under the 
proposed rule. The proposed registration requirement results in 
selected and unselected registrants. As seen in comparing Table 5 and 
Table 6, DHS estimates that the selected registrant population is equal 
to the selected petitioner population. Similarly, DHS estimates that 
the unselected registrant population is equal to the unselected 
petitioner population.
    The proposed registration requirement would impose an additional 
cost to all registrants who are seeking to file H-1B cap-subject 
petitions. Selected registrants would be eligible to file an H-1B cap-
subject petition. Therefore as selected registrants under the proposed 
registration requirement, DHS estimates current selected petitioners 
would incur additional opportunity costs of time to complete the 
electronic registration relative to the costs of completing and filing 
the associated H-1B petition. Unselected registrants would not be 
eligible to file an H-1B cap-subject petition. Therefore as unselected 
registrants under the proposed registration requirement, DHS estimates 
the costs of this proposed rule to unselected petitioners would only 
result from the estimated opportunity costs associated with the 
registration requirement. Overall, unselected petitioners would 
experience a cost savings relative to the current H-1B petitioning 
process since as unselected registrants they would not complete and 
file an entire H-1B cap-subject petition.
    The proposed registration requirement would impose costs to 
registrants in terms of the opportunity costs of time to create an 
initial account per user and complete a registration for each 
prospective cap-subject H-1B worker. Additionally, under this proposed 
registration requirement, registrations that are completed by lawyers 
would require completion annually of Form G-28 once per lawyer-
petitioner relationship. The proposed rule would require that all who 
seek to file an H-1B cap-subject petition (an estimated 192,918 
petitions annually) would now be required to register. Only those whose 
registrations are selected would then be eligible to complete and file 
an H-1B cap-subject petition on behalf of a prospective H-1B worker for 
that fiscal year. DHS estimates a range of the total cost of the 
proposed registration requirement \107\ by using the time burden 
estimated for each account creation (0.17 hours) and registration (0.5 
hours) by the wages previously discussed for each type of petition 
preparer, in addition to the time burden to complete a Form G-28 for 
in-house and outsourced lawyers.\108\
---------------------------------------------------------------------------

    \107\ As previously stated, DHS does not assume petitioners 
would need to expend additional funds to procure computer equipment 
or acquire internet connections because DOL already requires 
employers to use electronic filing of Labor Condition Applications 
(LCAs), and an approved LCA is a requisite for requesting an H-1B 
employee.
    \108\ Lawyers and accredited representatives who complete 
electronic registration would need to complete a paper Form G-28 and 
upload the paper form as a portable document format (PDF) file. One 
Form G-28 would need to be uploaded for each employer, and can be 
tied automatically to multiple registrations of beneficiaries under 
the same employer.
---------------------------------------------------------------------------

    Unlike the standard for current H-1B cap-subject petitions, lawyers 
and accredited representatives would not be required to file a separate 
Form G-28 for each electronic registration when submitting multiple 
registrations for the same employer. Instead, in the electronic 
registration environment, a lawyer or accredited representative that 
submits multiple electronic registrations for an employer would only be 
required to file Form G-28 once annually for that employer for purpose 
of filing H-1B cap registrations after which multiple registrations 
could be filed at various times. This creates efficiency for those 
lawyers that file multiple registrations for the same employer since 
the uploaded Form G-28 information can be provided once annually and 
linked automatically with all registrations filed by that lawyer or 
accredited representative for that employer. Lawyers and accredited 
representatives would still be required to complete one electronic 
registration per beneficiary, and a separate Form G-28 would still be 
required for each H-1B cap-subject petition subsequently filed based on 
a selected registration.\109\
---------------------------------------------------------------------------

    \109\ The Form G-28 submission to authorize a lawyer or 
accredited representative to file registrations for an H-1B cap-
subject petition under this proposed rule is separate from the 
authorization that is required for an attorney or accredited 
representative to otherwise represent an applicant, petitioner, or 
requestor. This proposed rule does not propose to change the process 
or requirements related to the submission of Form G-28 when an 
applicant or petitioner files an application, petition, or request 
with USCIS. As such, petitioners with selected registrations who 
proceed to file an H-1B cap-subject petition will still be required 
to submit a properly completed Form G-28 if an attorney or 
accredited representative prepared the petition or will represent 
the petitioner in the case.

---------------------------------------------------------------------------

[[Page 62430]]

    The total opportunity cost of time for an HR specialist to create 
an account would be $7.90 \110\ and to register a single beneficiary 
would be $23.24.\111\ The opportunity cost of time for an in-house 
lawyer to create an account would be $16.93,\112\ to register a single 
beneficiary would be $49.80,\113\ and to complete Form G-28 would be 
$87.65.\114\ The opportunity cost of time for an outsourced lawyer to 
create an account would be $28.99,\115\ to register a single 
beneficiary would be $85.28,\116\ and to complete Form G-28 would be 
$150.08.\117\ Therefore, based on the calculated opportunity costs of 
time, the total cost to submit a registration for a single beneficiary 
would be $31.14 \118\ if submitted by an HR specialist, $154.38 \119\ 
if submitted by an in-house lawyer, and $264.35 \120\ if submitted by 
an outsourced lawyer.
---------------------------------------------------------------------------

    \110\ Calculation: $46.49 (HR wage) * 0.17 hours (time to create 
an account) = $7.90.
    \111\ Calculation: $46.49 (HR wage) * 0.5 hour (time to register 
one beneficiary) = $23.24.
    \112\ Calculation: $99.60 (in-house lawyer wage) * 0.17 hours 
(time to create an account) = $16.93.
    \113\ Calculation: $99.60 (in-house lawyer wage) * 0.5 hour 
(time to register one beneficiary) = $49.80.
    \114\ Calculation: $99.60 (in-house lawyer wage) * 0.88 hour 
(time to complete Form G-28) = $87.65.
    \115\ Calculation: $170.55 (outsourced lawyer wage) * 0.17 hours 
(time to create an account) = $28.99.
    \116\ Calculation: $170.55 (outsourced lawyer wage) * 0.5 hour 
(time to register one beneficiary) = $85.28.
    \117\ Calculation: $170.55 (outsourced lawyer wage) * 0.88 hour 
(time to complete Form G-28) = $150.08.
    \118\ Calculation: $7.90 (HR specialist account creation cost) + 
$23.24 (HR specialist registration cost) = $31.14.
    \119\ Calculation: $16.93 (in-house lawyer account creation 
cost) + $49.80 (in-house lawyer registration cost) + $87.65 (in-
house lawyer Form G-28 cost) = $154.38.
    \120\ Calculation: $28.99 (outsourced lawyer account creation 
cost) + $85.28 (outsourced lawyer registration cost) + $150.08 
(outsourced lawyer Form G-28 cost) = $264.35.
---------------------------------------------------------------------------

    In order to estimate how many accounts would be created for 
registration of beneficiaries, DHS used historical filings to identify 
the number of unique entities filing H-1B cap-subject petitions by 
employer identification number (EIN). DHS distinguishes the number of 
filings which included a Form G-28. DHS assumes petitions without a 
Form G-28 were filed by HR specialists and petitions with a Form G-28 
were filed by lawyers.
    Table 13 summarizes the filing history for the number of unique 
entities filing H-1B cap-subject petitions with and without associated 
Forms G-28.

 Table 13--Number of Unique Entities Filing H-1B Petitions With or Without Form G-28, Selected H-1B Cap-Subject
                                             Petitions FY 2013-2017
----------------------------------------------------------------------------------------------------------------
                                             Number of unique petitioners        Number of unique petitioners
                   FY                            filing with Form G-28             filing without Form G-28
----------------------------------------------------------------------------------------------------------------
2013....................................                              18,795                               1,605
2014....................................                              19,639                               1,892
2015....................................                              18,729                               2,171
2016....................................                              18,573                               2,231
2017....................................                              21,039                               2,180
                                         -----------------------------------------------------------------------
    5-year average......................                              19,355                               2,016
----------------------------------------------------------------------------------------------------------------
Source: USCIS Office of Performance and Qualify (OPQ), Performance Analysis and External Reporting (PAER),
  January 2018.

    For selected petitioners, DHS estimates 19,355 unique accounts 
would be created by lawyers and 2,016 unique accounts would be created 
by HR specialists for electronic registration based on the five-year 
historical averages in Table 13 (overall 21,371 unique entities).\121\
---------------------------------------------------------------------------

    \121\ Calculation: 19,355 unique entities + 2,016 unique 
entities = 21,371 total unique entities.
---------------------------------------------------------------------------

    To estimate the number of unique accounts created by lawyers and HR 
specialists for unselected petitioners, DHS applies the proportion of 
21,371 unique entities among selected petitions to unselected petitions 
(populations which are estimated in Table 5) and estimates 21,046 total 
unique entities.\122\ Furthermore, DHS reasonably estimates that 91 
percent \123\ of unique accounts would be created by lawyers and 9 
percent \124\ of unique accounts would be created by HR specialists. 
DHS applies these percentages to 21,046 total unique entities among 
unselected petitioners and estimates 19,152 \125\ unique accounts would 
be created by lawyers and 1,894 \126\ unique accounts would be created 
by HR specialists.
---------------------------------------------------------------------------

    \122\ Calculation: 21,371 total unique entities among selected 
petitions/97,198 selected petitions = 22 percent; 22 percent * 
95,720 unselected petitions = 21,046 unique entities among 
unselected petitions.
    \123\ Calculation: 19,355/21,371 = 91 percent.
    \124\ Calculation: 2,016/21,371 = 9 percent.
    \125\ Calculation: 21,046 unique entities * 91 percent = 19,152 
unique entities.
    \126\ Calculation: 21,046 unique entities * 9 percent = 1,894 
unique entities.
---------------------------------------------------------------------------

    USCIS recognizes that a single lawyer could represent multiple 
employers seeking to file H-1B cap-subject petitions, however in each 
such case a lawyer would need to upload a Form G-28 to represent the 
unique lawyer and employer relationship. Therefore, DHS also uses the 
estimate of unique accounts created by lawyers as a reasonable estimate 
for the total uploads of Forms G-28 during the electronic registration 
process.
i. Proposed Cost to Selected Registrants
    The proposed registration requirement would add an additional cost 
to those whose registrations are selected to complete and file H-1B 
cap-subject petitions. As stated in Table 6, DHS estimates 97,198 
registrations would be selected annually. Of the 97,198 selected 
registrations, USCIS estimates 73,272 registrations would be submitted 
by lawyers with the remaining registrations (23,926) submitted by HR 
specialists.
    As stated previously in the calculated opportunity costs of time 
presented in section 5(a) of this analysis, the total cost to complete 
and file Form I-129 would be $704.52 and Form I-907 would be $1,248.24 
for an HR specialist who files. The total cost to complete and file 
Form I-129 would be $983.90, Form I-907 would be $1,274.80, and Form G-
28 would be $87.65 for lawyers if an in-house lawyer files. The total 
cost to complete and file Form I-129 would be $1,357.09, Form I-907 
would be

[[Page 62431]]

$1,310.28, and Form G-28 would be $150.08 for lawyers if an outsourced 
lawyer files.
    Table 14 shows the estimated annual costs to complete and file H-1B 
petitions for selected registrants who are eligible to proceed as a 
petitioner under the proposed requirement. DHS estimates the proposed 
cost to complete electronic registration account creation is 
$15,926,\127\ registration is $556,031,\128\ Form I-129 is $16.9 
million, Form I-907 is $3.3 million, and mailing cost is $617,280 based 
on selected registrations anticipated to be prepared by an HR 
specialist. If completed by an in-house lawyer, DHS estimates the 
proposed cost to complete electronic registration account creation is 
$327,680,\129\ submitting a Form G-28 with the registration is $1.7 
million,\130\ registration is $3.6 million,\131\ Form I-129 is $72.1 
million, Form I-907 is $27.2 million, Form G-28 again with each 
petition is $6.4 million, and mailing cost is $1.9 million based on 
selected anticipated to be prepared by in-house lawyers. Finally, if 
completed by an outsourced lawyer, DHS estimates the proposed cost to 
complete electronic registration account creation is $561,101,\132\ 
submitting a Form G-28 with the registration is $2.9 million,\133\ 
registration is $6.2 million,\134\ Form I-129 is $99.4 million, Form I-
907 is $28.0 million, and Form G-28 again with each petition is $11.0 
million, and mailing cost is $1.9 million based on selected 
registrations anticipated to be prepared by lawyers.
---------------------------------------------------------------------------

    \127\ Calculation: 2,016 unique HR specialists among selected 
registrations * $7.90 cost per account creation for HR specialist = 
$15,926 (rounded).
    \128\ Calculation: 23,926 selected registrations filed by HR 
specialists * $23.24 cost per registration = $556,031 (rounded).
    \129\ Calculation: 19,355 unique lawyers * $16.93 cost per 
account creation for in-house lawyer = $327,723 (rounded).
    \130\ Calculation: 19,355 unique lawyers * $87.65 cost per Form 
G-28 upload for in-house lawyer = $1,696,447 (rounded).
    \131\ Calculation: 73,272 selected petitions filed by lawyers * 
$49.80 cost per registration for in-house lawyer = $3,649,009 
(rounded).
    \132\ Calculation: 19,355 unique lawyers * $28.99 cost per 
account creation for outsourced lawyer = $ $561,169 (rounded).
    \133\ Calculation: 19,355 unique lawyers * $150.08 cost per Form 
G-28 upload for outsourced lawyer = $ $2,904,876 (rounded).
    \134\ Calculation: 73,272 selected petitions filed by lawyers * 
$85.28 cost per registration for outsourced lawyer = $6,248,304 
(rounded).

 Table 14--Estimated Costs for Selected Registrants Under the Proposed Registration Requirement by Preparer Type
 [Includes opportunity cost of time for registration, opportunity cost of time to complete petition, and filing
                                                      fees]
----------------------------------------------------------------------------------------------------------------
                                            HR specialist           In-house lawyer         Outsourced lawyer
----------------------------------------------------------------------------------------------------------------
Registration Account Creation........                  $15,926                 $327,680                 $561,101
Form G-28 Submission with              .......................                1,696,466                2,904,798
 Registration........................
Registration.........................                  556,031                3,648,966                6,248,670
Form I-129...........................               16,856,064               72,092,714               99,437,241
Form I-907...........................                3,252,913               27,281,995               28,041,302
Form G-28 Submission with Form I-129.  .......................                6,422,326               10,996,722
Mailing Cost.........................                  617,280                1,890,428                1,890,428
                                      --------------------------------------------------------------------------
    Total Cost.......................               21,298,214              113,360,574              150,080,263
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.

    Compared to current costs, DHS estimates the proposed registration 
process would add a new cost of $571,957,\135\ $5.7 million,\136\ or 
$9.7 million \137\ in costs to selected petitioners depending on the 
type of preparer. Per petition, as previously stated, DHS estimates the 
total cost to submit a registration for a single beneficiary would be 
$31.14 if submitted by an HR specialist, $154.38 if submitted by an in-
house lawyer, and $264.35 if submitted by an outsourced lawyer.
---------------------------------------------------------------------------

    \135\ Calculation: $15,926 + $556,031 = $571,957 (rounded).
    \136\ Calculation: $327,680 + $1,696,466 + $3,648,966 = 
$5,673,111 (rounded).
    \137\ Calculation: $561,101 + $2,904,798 + $6,248,670 = 
$9,714,570 (rounded).
---------------------------------------------------------------------------

ii. Proposed Costs to Unselected Registrants
    Those whose registrations are not selected would incur new costs as 
a result from this proposed registration requirement as well. DHS 
estimates annually 95,720 registrations would be not selected as 
presented in Table 5. Of the 95,720 unselected registrations DHS 
estimates 72,158 registrations would be submitted by lawyers with the 
remaining registrations (23,562) submitted by HR specialists.
    Table 15 shows the estimated costs to unselected registrants from 
this proposed registration requirement. DHS estimates the proposed 
annual cost to complete electronic registration account creation is 
$14,963,\138\ and cost to complete registrations is $547,581 \139\ for 
HR specialists who submit unselected registrations. DHS estimates the 
proposed annual cost to complete electronic registration account 
creation is $324,243,\140\ registrations is $3.6 million,\141\ and cost 
to complete and upload Form G-28 is $1.7 million \142\ for in-house 
lawyers who submit unselected registrations. Finally, DHS estimates the 
proposed annual cost to complete electronic registration account 
creation is $552,216,\143\ registrations is $6.2 million,\144\ and cost 
to complete and upload Form G-28 is $2.9 million \145\ for outsourced 
lawyers who submit unselected registrations.
---------------------------------------------------------------------------

    \138\ Calculation: 1,894 unique HR specialists among unselected 
registrations * $7.90 opportunity cost = $14,963 (rounded).
    \139\ Calculation: 23,562 unselected registrations filed by HR 
specialists * $23.24 opportunity cost = $547,581 (rounded).
    \140\ Calculation: 19,152 unique lawyers among unselected 
registrations * $16.93 cost per account creation for in-house lawyer 
= $324,243 (rounded).
    \141\ Calculation: 72,158 unselected registrations filed by 
lawyers * $49.80 opportunity cost = $3,593,468 (rounded).
    \142\ Calculation: 19,152 Form G-28 petitions * $87.65 
opportunity cost in-house lawyer = $1,678,673 (rounded).
    \143\ Calculation: 19,152 unique lawyers among unselected 
registrations * $28.99 cost per account creation for outsourced 
lawyer = $552,216 (rounded)
    \144\ Calculation: 72,158 unselected registrations filed by 
lawyers * $85.28 opportunity cost = $6,153,634 (rounded).
    \145\ Calculation: 19,152 Form G-28 petitions * $150.08 
opportunity cost outsourced lawyer = $2,874,332 (rounded).

[[Page 62432]]



  Table 15--Estimated Costs for Unselected Registrants Under the Proposed Registration Requirement by Preparer
                                                      Type
                              [Includes opportunity cost of time for registration]
----------------------------------------------------------------------------------------------------------------
                                                                                     In-house       Outsourced
                                                                   HR specialist      lawyer          lawyer
----------------------------------------------------------------------------------------------------------------
Electronic Registration Account Creation........................         $14,963        $324,243        $552,216
Form G-28 Submission with Registration..........................  ..............       1,678,673       2,874,332
Registration....................................................         547,581       3,593,468       6,153,634
                                                                 -----------------------------------------------
    Total Cost..................................................         562,544       5,596,384       9,583,182
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis of H-1B cap-subject petition cost.

    Table 15 demonstrates the proposed registration process would add a 
new cost of $562,544, $5.6 million, or $9.6 million in costs to 
unselected registrants depending on the type of preparer.
iii. Total Proposed Costs for Selected and Unselected Registrants in 
Annual Filing Period
    As upper and lower bounds are discussed in section 5(a) of this 
analysis, DHS estimates total costs for an annual filing period by 
adding HR specialist costs and lawyer costs. Table 16 summarizes the 
lower bound and upper bound for selected petitioners and unselected 
registrants in an annual filing period.

   Table 16--Summary of Registration Costs and Petition Costs for All
 (Selected and Unselected) Registrants in an Annual Filing Period under
                  the Proposed Registration Requirement
------------------------------------------------------------------------
          Registrant type              Lower bound        Upper bound
------------------------------------------------------------------------
                  Estimated Proposed Registration Costs
    (new costs as a result of this proposed registration requirement)
------------------------------------------------------------------------
Selected Registrants..............         $6,245,069        $10,286,527
Unselected Registrants............          6,158,928         10,145,726
                                   -------------------------------------
    All Registrants...............         12,403,997         20,432,254
------------------------------------------------------------------------
   Estimated Proposed Petition Costs associated with H-1B Cap-Subject
                            Petition Process
 (estimated costs as a result of the proposed registration requirement)
------------------------------------------------------------------------
Selected Registrants..............       $134,658,789       $171,378,477
Unselected Registrants............          6,158,928         10,145,726
                                   -------------------------------------
    All Registrants...............        140,817,717        181,524,203
------------------------------------------------------------------------
Source: USCIS analysis.
Note: DHS estimates that 75 percent of H-1B petitions are prepared by
  lawyers or other accredited representatives and 24 percent are
  completed and prepared by HR specialists or other equivalent
  occupation in an annual filing period. Therefore in order to present
  total costs for an annual filing period, DHS aggregates HR specialist
  costs and lawyer (or accredited representative) costs.

    In Table 16, the estimated registration costs for selected 
registrants in an annual filing period would range from $6.2 
million\146\ to $10.3 million,\147\ depending on who registrants use to 
submit the registration. The estimated registration costs for 
unselected registrants in an annual filing period would range from $6.2 
million\148\ to $10.1 million\149\, again depending on who registrants 
use to submit the registration. Therefore, DHS estimates under the 
proposed registration requirement the total proposed registration cost 
to all petitioners for an annual filling period would range from $12.4 
million to $20.4 million, using lower bound and upper bound 
calculations.
---------------------------------------------------------------------------

    \146\ Calculation: $571,957 HR specialist cost + $5,673,111 in-
house lawyer cost = $6,245,069 annual costs (rounded).
    \147\ Calculation: $571,957HR specialist cost + $9,714,570 
outsourced lawyer cost = $10,286,527 annual costs (rounded).
    \148\ Calculation: $562,544 HR specialist cost + $5,596,384 in-
house lawyer cost = $6,158,928 annual costs (rounded).
    \149\ Calculation: $562,544 HR specialist cost + $9,583,182 
outsourced lawyer cost = $10,145,726 annual costs (rounded).
---------------------------------------------------------------------------

    DHS anticipates selected registrants would complete and file H-1B 
cap-subject petitions. Therefore, for selected registrants, entire 
costs to complete the H-1B cap-subject petition under the proposed 
registration requirement would range from $134.7 million \150\ to 
$171.4 million \151\, depending on who selected registrants use to 
complete the process. Under the proposed registration requirement, DHS 
anticipates unselected registrants would only experience registration 
costs in pursuing H-1B cap-subject petitions. Therefore, DHS estimates 
the total proposed registration costs and proposed costs associated 
with the H-1B cap-subject petition process are equal for unselected 
registrants, as seen in Table 16. For all registrants, DHS estimates 
the total cost to complete and file an H-1B petition for an annual 
filling period would range from $140.8 million to $181.5 million. DHS 
welcomes any public comments on the estimated costs from the proposed 
electronic registration process.
---------------------------------------------------------------------------

    \150\ Calculation: $21,341,632 HR specialist cost + $113,317,338 
in-house lawyer cost = $134,658,970 annual costs (rounded).
    \151\ Calculation: $21,341,632 HR specialist cost + $150,035,823 
outsourced lawyer cost = $171,377,455 annual costs (rounded).
---------------------------------------------------------------------------

c. Costs of the Proposed Registration Requirement to the Government
    The government would incur costs to develop and maintain the 
proposed electronic registration requirement. USCIS would need to 
develop the

[[Page 62433]]

proposed registration website. To complete the proposed registration 
system development, USCIS anticipates paying four workers each an 
annual salary of $134,789,\152\ or an hourly rate of $64.59.\153\ 
Similar to wage calculations in prior sections, DHS multiplies the per 
hourly wage rate ($64.59) by 1.46 to account for total employee costs. 
The total per hour wage would be $94.30.\154\ DHS anticipates the four 
workers would each dedicate varied amounts of work time over the span 
of 27 weeks to complete the registration system development. Of the 
four workers during this time period, two workers would dedicate 75 
percent of working hours (1,620 hours) to this project,\155\ one worker 
would dedicate 50 percent of working hours (540 hours) to this 
project,\156\ and the last worker would dedicate 25 percent of working 
hours (270 hours) to this project.\157\ The registration development 
team would work an estimated 2,430 total hours on this project.\158\ 
Therefore, at an hourly rate of $94.30, USCIS estimates that the labor 
costs associated with the development of the registration system would 
be $229,149.\159\ DHS welcomes any comments from the public on 
government costs.
---------------------------------------------------------------------------

    \152\ USCIS anticipates paying employees at Grade 15 from the 
General Schedule from the U.S. Office of Personnel Management's 2018 
schedule for the Washington-Baltimore-Arlington, DC-MD-VA-WV-PA 
locality pay. DHS does not know these employees' step level, but 
assumes that team members are Step 1 for the purposes of this 
analysis. See https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2018/DCB.pdf.
    \153\ For Grade 15 Step 1 hourly wages see https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2018/DCB_h.pdf.
    \154\ Calculation: $64.59 * 1.46 = $94.30.
    \155\ Calculation: 27 weeks * 40 hours = 1,080 hours; (1,080 
hours * 0.75) * 2 workers = 1,620 hours.
    \156\ Calculation: 1,080 hours * 0.5 = 540 hours.
    \157\ Calculation: 1,080 hours * 0.25 = 270 hours.
    \158\ Calculation: 1,620 hours + 540 hours + 270 hours = 2,430 
total hours.
    \159\ Calculation: 2,430 hours * $94.30 per hour = $229,149.
---------------------------------------------------------------------------

    The electronic registration system would use current USCIS 
infrastructure. Therefore, USCIS would not need to invest in new 
hardware or other equipment during the development phase. Once the 
registration system is in use, DHS anticipates annual costs associated 
with running existing servers and the opportunity cost of time for the 
workers who continue to maintain the registration system. Based on 
prior experience and current assumptions about the system's usage, DHS 
estimates that it would not exceed $50,000 annually to run servers once 
this rule becomes effective.\160\ Additionally, DHS estimates that 
labor costs associated with maintaining the registration system would 
not exceed $150,000 annually beginning in the second year.\161\
---------------------------------------------------------------------------

    \160\ Information verified by U.S. Digital Services (USDS) on 
November 9, 2017. While USDS is not developing the electronic 
registration system for this proposed rule, DHS assumes the 
information provided is a reasonable estimate of development costs.
    \161\ Id.
---------------------------------------------------------------------------

    USCIS would develop the electronic registration system and incur 
costs associated with labor and maintenance, totaling $279,149 in the 
first year of the effectiveness of this proposed rule.\162\ In 
subsequent years, USCIS would incur maintenance costs associated with 
labor and running servers, which would total $200,000 per year. Over 
ten years, USCIS would incur maintenance costs of $2,079,149, resulting 
in an annualized amount of $225,269 discounted at 7 percent, and 
$215,279 discounted at 3 percent for that timeframe. Discounted over 10 
years, this provision would result in costs to USCIS totaling $1.8 
million based on a discount rate of 3 percent and $1.6 million based on 
a discount rate of 7 percent.
---------------------------------------------------------------------------

    \162\ Calculation: $229,149 (labor costs) + $50,000 (server 
costs) = $279,149. These estimates are based on the information 
provided by USCIS OIT.
---------------------------------------------------------------------------

d. Cost to Petitioners From the Proposed Petition Selection Process
    As discussed in the population section of this analysis, under the 
current process, if more petitions are received during the first five 
business days that petitions may be filed than USCIS has projected are 
needed to meet both the regular cap and the advanced degree exemption, 
USCIS would randomly select an estimated 33,495 beneficiaries with 
master's degrees or higher from U.S. institutions of higher education 
in total between the regular cap and advanced degree exemption, which 
accounts for 17 percent of the total H-1B cap-subject petitions 
received.\163\ Under the proposed selection process, USCIS would 
randomly select an estimated 38,835 registrations relating to 
beneficiaries with an advanced degree from a U.S. institution of higher 
education, which would account for 20 percent of the total 
registrations received by USCIS.\164\ Conversely, beneficiaries 
qualifying under the regular cap currently account for 83 percent of 
selected H-1B cap-subject petitions,\165\ and under the proposed 
selection process, such beneficiaries would account for 80 percent of 
selected registrations.\166\ Therefore, USCIS anticipates the 
probability of randomly selecting a petition filed for a beneficiary 
without a master's or higher degree from a U.S. institution of higher 
education during the H-1B cap registration selection process under the 
proposed rule to fall by 3 percent.\167\ This could result in fewer 
selections of petitioners with H-1B cap-subject beneficiaries holding a 
bachelor's degree, an advanced degree from a U.S. for-profit 
institution of higher education, or a foreign advanced degree. This 
potential decrease could result in some higher labor costs to 
petitioners assuming that beneficiaries with bachelor's degrees, 
advanced degrees from U.S. for-profit universities or foreign advanced 
degrees are paid less than and replaced by beneficiaries with master's 
or higher degrees from U.S. institutions of higher education.\168\ 
However, more highly educated workers tend to have a higher marginal 
product of labor, which would benefit employers and could be expected 
to offset the additional wages costs. Thus, any potential wage 
differential may be more appropriately thought of as a benefit because 
it takes account of the higher value of the labor resources being 
brought to the economy. DHS encourages any public comments on these 
anticipated costs, benefits, and transfers.
---------------------------------------------------------------------------

    \163\ Calculation: 33,495 advanced degree Forms I-129 selected/
192,918 total H-1B cap-subject petitions * 100 = 17 percent 
(rounded).
    \164\ Calculation: 38,835 advanced degree registrations 
selected/192,918 total registrations * 100 = 20 percent (rounded).
    \165\ Calculation: 100 percent-17 percent advanced degree 
beneficiaries = 83 percent regular cap beneficiaries (rounded).
    \166\ Calculation: 100 percent-20 percent advanced degree 
beneficiaries = 80 percent regular cap beneficiaries (rounded).
    \167\ Calculation: 80 percent-83 percent = -3 percent.
    \168\ While DHS recognizes that wages paid to workers with a 
master's degrees may be higher than wages paid to workers with a 
bachelor's degree, it is unclear whether wages paid to workers with 
a master's or higher degree from a U.S. institution of higher 
education are higher than those paid to workers with a comparable 
advanced degree from a foreign educational institution.
---------------------------------------------------------------------------

    DHS is particularly interested in any analyses or data on the 
expected size and distribution of these effects. DHS has been able to 
develop an estimate of the aggregate increase in the expected number of 
beneficiaries with master's degrees or above from U.S. institutions of 
higher education being selected and a commensurate decrease in other 
types of workers who might otherwise be selected. However, DHS has not 
been able to determine how this may impact particular industries 
currently submitting H-1B cap petitions for individuals without 
master's degrees

[[Page 62434]]

and above from U.S. institutions of higher education and how this may 
impact particular types of workers. DHS welcomes input from commenters 
on the industries and types of workers most likely to be affected by 
the proposed rule and the likely sizes of these effects.
6. Benefits
    Under the proposed registration requirement, current unselected 
petitioners would benefit in the form of cost savings between the 
current and proposed process as unselected registrants. The benefits to 
unselected petitioners would derive from the reduced time and effort 
required to file an entire petition, with fees.
    DHS estimated that unselected petitioners experience a cost savings 
by subtracting new registration costs from the current costs of 
preparing an H-1B cap-subject petition. Unselected petitioners and the 
government would also benefit by reduced mailing expenses. Furthermore, 
DHS estimates the probability that individuals with master's or higher 
degree from a U.S. institution of higher education would become H-1B 
workers would increase. Consequently, the proposed registration 
selection process likely would allow more cap-subject H-1B workers with 
a master's or higher degree from a U.S. institution of higher education 
to obtain H-1B status.
a. Benefits to Petitioners From the Proposed Registration Requirement
    Under the proposed requirement, those seeking to file an H-1B cap-
subject petition would need to create their electronic registration 
account, complete registration, and have a selected registration before 
completing and filing an H-1B cap-subject petition in a particular 
fiscal year. If USCIS selects a registration, the registrant would then 
complete and file a Form I-129 (and if necessary Form I-907 and/or Form 
G-28) on behalf of the beneficiary named in the selected registration. 
If USCIS does not select a registration, no further steps are required 
as the registrant would be ineligible to file an H-1B cap-subject 
petition for the beneficiary in the unselected registration for that 
fiscal year. The unselected registrant would only incur those 
opportunity costs of time for creating the electronic registration 
account and registering the beneficiary, as well as the opportunity 
costs of time to submit Form G-28 if a lawyer or accredited 
representative completes the electronic registration. Overall, 
unselected registrants would save in costs by no longer having to 
complete and file an entire H-1B cap-subject petition to be selected in 
the H-1B lottery.
    Presented in Table 12, the current total costs to unselected 
petitioners in an annual filing period ranges from $53.5 million to 
$85.6 million, depending on who petitioners use to prepare the 
petition. These costs represent the opportunity costs of time to 
complete and file H-1B cap-subject petitions without the filing fees 
since those are returned to petitioners as well as the costs of mailing 
in the petition.
    Presented in Table 16, the total proposed cost to unselected 
registrants under the proposed registration requirement ranges from 
$6.1 million to $10.1 million, again depending on the type of preparer 
who submits the registration. These costs represent the opportunity 
costs of time to submit a registration in the electronic registration 
system.
    DHS estimates a cost savings for unselected petitioners from the 
proposed registration requirement by subtracting the total proposed 
costs to unselected registrants from the total current costs to 
unselected petitioners. As summarized in Table 17, DHS estimates the 
total cost savings would range from $47.3 million \169\ to $75.5 
million,\170\ depending on the type of preparer. This cost savings 
results because fewer resources would be required to create an account 
and complete registration than to complete and file H-1B cap-subject 
petitions.
---------------------------------------------------------------------------

    \169\ Calculation: $53,467,520 (current total costs for 
unselected petitioners lower bound)-$6,158,928 (proposed total costs 
for unselected registrants lower bound) = $47,308,592 cost savings.
    \170\ Calculation: $85,647,558 (current total costs for 
unselected petitioners upper bound)-$10,145,726 (proposed total 
costs for unselected registrants upper bound) = $75,501,832 cost 
savings.

   Table 17--Costs Savings to Unselected Petitioners From the Proposed
                        Registration Requirement
------------------------------------------------------------------------
                                                          Upper bound
 Annual H-1B petition filing costs   Lower bound (in      (outsourced
                                      house lawyer)         lawyer)
------------------------------------------------------------------------
Current Costs to Unselected               $53,467,520        $85,647,558
 Petitioners......................
Proposed Costs to Unselected                6,158,928         10,145,726
 Petitioners......................
                                   -------------------------------------
    Total Cost Savings............         47,308,592         75,501,832
------------------------------------------------------------------------
Source: USCIS analysis.
Note: See Table 10 and Table 15 for cost calculations.

    DHS estimates net quantitative impact from the proposed 
registration requirement by subtracting the total proposed costs to all 
registrants (selected and unselected) from the total current costs to 
all petitioners (selected and unselected). As summarized in Table 18, 
DHS estimates the net quantitative impact of this proposed registration 
requirement for H-1B petitioners overall is a positive net annual 
benefit ranging from $41.0 million to $65.2 million, depending on who 
the petitioners use to complete the H-1B petition process.

   Table 18--Net Quantitative Impact to Petitioners From the Proposed
                        Registration Requirement
------------------------------------------------------------------------
 Annual H-1B petition filing costs     Lower bound        Upper bound
------------------------------------------------------------------------
Current Costs to Selected and            $181,881,240       $246,739,508
 Unselected Petitioners...........
Proposed Costs to Selected and            140,817,717        181,524,203
 Unselected Petitioners...........
                                   -------------------------------------
    Total Cost Savings............         41,063,523         65,215,305
------------------------------------------------------------------------
Source: USCIS analysis.
Note: See Table 12 and Table 16 for cost calculations.


[[Page 62435]]

b. Benefits to the Government From the Proposed Registration 
Requirement
    USCIS would expect net cost-savings as a result of the proposed 
registration requirement by no longer needing to receive, handle and 
return unselected H-1B cap-subject petitions back to petitioners. Table 
19 shows the costs to USCIS in FY 2017 from unselected H-1B cap-subject 
petitions at both the Vermont Service Center (VSC) and California 
Service Center (CSC), where such petitions are filed and processed. DHS 
uses the FY 2017 costs to estimate USCIS' cost savings from this 
proposed rule.\171\ USCIS would save $1.6 million annually by removing 
petition handling, data entering, return shipping, and other costs.
---------------------------------------------------------------------------

    \171\ While DHS prefers to base assumptions on a longer time 
period (ideally years), 1 year was the longest time period for which 
this data could be reported.

                   Table 19--USCIS Costs for Unselected H-1B Cap-Subject Petitions in FY 2017
----------------------------------------------------------------------------------------------------------------
                                                                        VSC             CSC            Total
----------------------------------------------------------------------------------------------------------------
Handling (including overtime), data entry, and other costs......        $526,357        $479,406      $1,005,763
Shipping costs..................................................         271,015         335,642         606,657
                                                                 -----------------------------------------------
    Total.......................................................         797,372         815,048       1,612,420
----------------------------------------------------------------------------------------------------------------
Source: USCIS Service Center Operations (SCOPS) July, 2017.

    As stated in the cost section of this analysis, USCIS would incur 
maintenance costs of $279,149 in the first year of the effectiveness of 
this proposed rule and $200,000 per subsequent year. To measure the net 
quantitative impact, USCIS estimates the difference between current 
costs associated with H-1B cap-subject petitions and costs estimated 
under this proposed rule. Summarized in Table 20, the net quantitative 
impact of this proposed registration requirement for the government is 
cost savings of $1.3 million in the first year, and $1.4 million in 
each subsequent year.

Table 20--Net Annual Quantitative Impact to Government From the Proposed
                        Registration Requirement
------------------------------------------------------------------------
                                                         Total costs to
    Annual H-1B cap-subject petition filing costs          government
------------------------------------------------------------------------
Current Costs........................................         $1,612,420
Proposed Costs (First Year)..........................            279,149
                                                      ------------------
    Cost Savings (First Year)........................          1,333,271
------------------------------------------------------------------------
    Annual H-1B cap-subject petition filing costs        Total costs to
                                                           government
------------------------------------------------------------------------
Current Costs........................................        $ 1,612,420
Proposed Costs (Subsequent Year).....................            200,000
    Cost Savings (Subsequent Year)...................          1,412,420
------------------------------------------------------------------------
Source: USCIS analysis.

    The net quantitative impact of this proposed registration 
requirement for the government is cost savings of $14.0 million ($12.3 
million discounted at 3 percent and $10.5 million discounted at 7 
percent over ten years) or an annualized cost savings of $1.4 million 
discounted at 7 percent. In addition to the estimated cost savings, 
USCIS would eliminate any potential need to manually enter petition 
information into the database to eliminate duplicate petitions in order 
to administer the random selection process. The proposed registration 
system would allow USCIS to focus its efforts on adjudicating petitions 
over managing the intake, storage and return of tens of thousands of 
unselected H-1B cap-subject petitions. DHS welcomes public comment on 
the estimated cost savings to the government from this proposed 
registration process.
c. Net Quantitative Impacts of This Proposed Registration Requirement 
(Petitioners and Government)
    DHS estimates the net quantitative impact from the proposed 
registration requirement by combining the net impact to petitioners and 
net impact to government as described in preceding sections.
    As summarized in Table 19, DHS estimates the net quantitative 
impact of this proposed registration requirement for H-1B petitioners 
overall is a positive net benefit ranging from $41.0 million to $65.2 
million, depending on who the petitioners use to complete the H-1B 
petition process. As summarized earlier, the net quantitative impact of 
this proposed registration requirement for the government is cost 
savings of $1.3 million in the first year, and $1.4 million in each 
subsequent year. To estimate the net quantitative impact of this 
proposed registration requirement, DHS calculates the cost savings for 
the lower bound and upper bound using the total cost savings shown in 
Table 21.

[[Page 62436]]



               Table 21--Net Annual Quantitative Impact From the Proposed Registration Requirement
                                                 [Undiscounted]
----------------------------------------------------------------------------------------------------------------
                                                           Petitioner net
                                                            cost savings      Government net      Total costs
                                                           (selected and       cost savings         savings
                                                            unselected)
----------------------------------------------------------------------------------------------------------------
                          Lower Bound (combination of HR specialist + in-house lawyer)
----------------------------------------------------------------------------------------------------------------
Year 1.................................................        $41,063,523         $1,333,271        $42,396,794
Sub. Annual............................................         42,063,523          1,412,420         42,475,943
----------------------------------------------------------------------------------------------------------------
                         Upper Bound (combination of HR specialist + outsourced lawyer)
----------------------------------------------------------------------------------------------------------------
Year 1.................................................        $61,215,305         $1,333,271        $66,548,576
Sub. Annual............................................         61,215,305          1,412,420         66,627,725
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.

    Using lower bound figures, the net quantitative impact of this 
proposed registration requirement is cost savings of $424.8 million 
over ten years. Discounted over 10 years, these cost savings would be 
$373.2 million based on a discount rate of 3 percent and $319.2 million 
based on a discount rate of 7 percent. This is summarized in Table 22.

               Table 22--Net Cost Savings From the Proposed Registration Requirement, Lower Bound
                                     [Discounted at 3 percent and 7 percent]
----------------------------------------------------------------------------------------------------------------
                                                           Non-discounted       3 Percent          7 Percent
                                                           estimated cost     discount rate      discount rate
----------------------------------------------------------------------------------------------------------------
Year 1.................................................        $42,405,430        $42,405,430        $42,405,430
Year 2.................................................         42,484,582         41,247,167         39,705,217
Year 3.................................................         42,484,582         40,045,793         37,107,679
Year 4.................................................         42,484,582         38,879,411         34,680,074
Year 5.................................................         42,484,582         37,747,001         32,411,284
Year 6.................................................         42,484,582         36,647,574         30,290,920
Year 7.................................................         42,484,582         35,580,169         28,309,271
Year 8.................................................         42,484,582         34,543,853         26,457,262
Year 9.................................................         42,484,582         33,537,721         24,726,414
Year 10................................................         42,484,582         32,560,895         23,108,798
                                                        --------------------------------------------------------
    Total..............................................        424,766,668        373,195,013        319,202,349
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.

    Using upper bound figures, the net quantitative impact of this 
proposed registration requirement is cost savings of $666.4 million 
over ten years. Discounted over ten years, these cost savings would be 
$585.5 million based on a discount rate of 3 percent and $500.8 million 
based on a discount rate of 7 percent. This is summarized in Table 23.

               Table 23--Net Cost Savings From the Proposed Registration Requirement, Upper Bound
                                     [Discounted at 3 percent and 7 percent]
----------------------------------------------------------------------------------------------------------------
                                                           Non-discounted       3 Percent          7 Percent
                                                           estimated cost     discount rate      discount rate
----------------------------------------------------------------------------------------------------------------
Year 1.................................................        $66,564,962        $66,564,962        $66,564,962
Year 2.................................................         66,644,114         64,703,023         62,284,219
Year 3.................................................         66,644,114         62,818,469         58,209,550
Year 4.................................................         66,644,114         60,988,805         54,401,449
Year 5.................................................         66,644,114         59,212,432         50,842,475
Year 6.................................................         66,644,114         57,487,798         47,516,332
Year 7.................................................         66,644,114         55,813,396         44,407,787
Year 8.................................................         66,644,114         54,187,763         41,502,605
Year 9.................................................         66,644,114         52,609,479         38,787,481
Year 10................................................         66,644,114         51,077,164         36,249,982
                                                        --------------------------------------------------------
    Total..............................................        666,361,988        585,463,293        500,766,843
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.


[[Page 62437]]

    DHS notes that these overall cost savings result only in years when 
the demand for registrations and the subsequently filed petitions 
exceeds the number of available visas needed to meet the regular cap 
and advanced degree exemption allocation. For years where DHS has 
demand that is less than the number of available visas, this proposed 
registration requirement would result in costs.
    DHS conducted a breakeven analysis to determine how many 
registrations and subsequently filed petitions would be needed to 
offset the costs imposed by this rule. This analysis shows the number 
of registrations and subsequently filed petitions that would need to be 
received to ensure that cost-savings exceed the costs added by this 
proposed registration requirement. The results of this analysis can be 
seen in Table 26.

Table 24--Projected H-1B Cap-Subject Petitions Needed for Benefits (Cost-
  Savings) to Exceed Costs Under the Proposed Registration Requirement
------------------------------------------------------------------------
  Total annual cost under proposed registration requirement    Number of
              (petitioner and government costs)                petitions
------------------------------------------------------------------------
$141,025,632 (Lower Bound)..................................     110,182
$181,732,118 (Upper Bound)..................................     111,137
------------------------------------------------------------------------
Source: USCIS analysis.

    Total costs under this proposed registration requirement are a 
combination of costs to petitioners and costs to government, presented 
in Table 24 as a range with lower bound $141.0 million (preparer types 
HR specialist and in-house lawyer) and upper bound, $181.7 (preparer 
types HR specialist and outsourced lawyer).\172\ To calculate the 
number of petitions at which the new costs under this proposed rule 
offset the total cost-savings, DHS used a standard formula.\173\
---------------------------------------------------------------------------

    \172\ The costs to petitioners are presented in Table 16 and the 
costs to government are estimated to be an annualized amount of 
$210,532 as detailed in the costs section of this analysis.
    \173\ DHS conducted break-even analysis through Goal Seek in 
Microsoft Excel. Goal Seek sets a formula equal to a certain target 
(0 for breakeven analysis) and solves for the value of one parameter 
at that target.
---------------------------------------------------------------------------

    Based on each lower and upper bound cost estimate, DHS set receipt 
volume to the estimated number of H-1B cap-subject petitions randomly 
selected each year (97,198) and static target equal to 0 
(representative of a breakeven point) and solved for the value of how 
many petitions were needed to reach the target value of 0. From the 
resulting output, DHS estimates that 110,182 petitions (registrations 
and subsequently filed petition under the proposed rule) would need to 
be received by USCIS for the program to break-even based on lower bound 
costs. Another way to say this is that this rule would break-even if 
USCIS received 12,984 registrations above the numerical limitations in 
a given year for the lower bound estimate. DHS estimates USCIS would 
need to receive 111,137 registrations and subsequently filed petitions 
(or an additional 13,939 registrations above the numerical limitations) 
for this proposed rule to break-even based on upper bound costs. DHS 
welcomes any public comments on the cost savings to petitioners 
presented in this proposed rule.
d. Benefits to Petitioners From the Proposed Petition Selection Process
    As discussed in the section 4 of this analysis, USCIS currently 
randomly selects an estimated 33,495 H-1B cap-subject petitions filed 
for beneficiaries with a master's or higher degree from a U.S. 
institution of higher education (see Table 7), which accounts for 17 
percent of the total H-1B cap-subject petitions received annually. 
Under the proposed registration and selection process, in years when 
the number of registrations received during the initial registration 
period exceeds the projected number of registrations needed to meet the 
numerical limits, USCIS would randomly select an estimated 38,835 
registrations relating to beneficiaries with a master's or higher 
degree from a U.S. institution of higher education, which would account 
for 20 percent of the total registrations received. USCIS anticipates 
that the probability of selecting registrations for H-1B beneficiaries 
with a master's or higher degree from a U.S. institution of higher 
education would rise by 3 percentage points, (shifting from 17 percent 
to 20 percent).\174\
---------------------------------------------------------------------------

    \174\ Calculation: 20 percent-17 percent = 3 percent.
---------------------------------------------------------------------------

7. Labor Market Impacts
    Congress currently limits the number of new cap-subject H-1B 
workers to 85,000, with 20,000 visas allocated to H-1B beneficiaries 
with a master's or higher degree from a U.S. institution of higher 
education and 65,000 visas allocated to the remaining pool of H-1B 
beneficiaries that could include H-1B workers eligible for either the 
advanced degree exemption or regular cap. The proposed provisions 
requiring registration prior to filing an H-1B cap-subject petition, as 
well as the proposal to amend the order in which beneficiaries are 
counted toward the advanced degree exemption allocation and regular cap 
would change the H-1B cap-subject petitioning process. Neither of these 
proposed changes would amend the numerical limit on individuals who may 
be issued H-1B visas or otherwise accorded H-1B status as provided by 
Congress. In other words, neither of the proposed provisions changes 
the number of new H-1B workers entering the U.S labor force. Therefore, 
this proposed rule does not directly impact the labor market. While 
this proposed rule does not change the numbers of H-1B workers in the 
labor market, it could change the composition of future H-1B workers. 
The proposed selection process would increase the probability that more 
H-1B workers with a master's or higher degree from a U.S. institution 
of higher education would obtain classification as an H-1B worker. 
While some of these beneficiaries might already be in the U.S. labor 
market based on an existing nonimmigrant status and associated 
employment authorization (e.g., F-1 nonimmigrant student status and 
Optional Practical Training employment authorization), others will be 
new to the U.S. labor market, thereby increasing the level of H-1B 
workers in the U.S. labor market educated at a U.S. institution of 
higher education. DHS welcomes comments from the public on the impact 
to the labor market as a result of this proposed rule.
    DHS acknowledges that this regulation will likely result in a shift 
from one pool of H-1B cap-subject workers to another pool of H-1B cap-
subject workers. DHS believes it is possible that petitioning employers 
may choose to petition for a higher number of H-1B beneficiaries that 
have advanced degrees from a U.S. institution of higher learning than 
may currently be the case. However, DHS was not able to estimate the 
magnitude of such transfers and seeks suggestions from the public 
regarding data sets which may help to quantify this transfer. DHS 
recognizes that there are potential wage increases for those that earn 
a master's degree compared to those with only a bachelor's degree. 
Overall, individuals with a master's degree earned 19.6 percent more in 
wages than individuals with a bachelor's degree. Additionally, workers 
with a master's degree in selected STEM occupations earned between 18 
and 33 percent higher than workers with a bachelor's degree in those 
same occupations.\175\ However,

[[Page 62438]]

due to the variability in the composition and delineation of workers in 
our H-1B petition process, DHS is not able to estimate the magnitude of 
such transfers for the specific pool of H-1B workers. Importantly, 
within the regular cap there are H-1B beneficiaries that have 
bachelor's degrees as well as beneficiaries that have advanced degrees 
from foreign institutions of higher education.
---------------------------------------------------------------------------

    \175\ Source: Bureau of Labor Statistics, Department of Labor, 
``Measuring the Value of Education April 2018'': https://www.bls.gov/careeroutlook/2018/data-on-display/education-pays.htm. 
Visited November, 2018.
    Bureau of Labor Statistics, Department of Labor, ``Should I Get 
a Master's Degree?'': https://www.bls.gov/careeroutlook/2015/article/should-i-get-a-masters-degree.htm#STEM. Visited November, 
2018.
---------------------------------------------------------------------------

    Using fully loaded wages, and assuming that there is a shift of 
5,000 visas from individuals in the general pool to individuals in the 
advanced degree pool, DHS finds that it is reasonable to conclude that 
the rule may have an annualized transfer that is greater than $100 
million.\176\ For instance, with this assumption of 5,000 visas shifted 
from individuals in the general pool to individuals in the advanced 
degree pool, the fully-loaded wages transferred would only need to 
average at least $20,000 to reach the $100 million threshold. DHS notes 
that such transfers are uncertain at this juncture given that the cap 
allocation process is by definition unpredictable, that the regular cap 
includes individuals with advanced degrees from foreign universities, 
and that wages can vary widely between occupations, as well as location 
of employment (e.g., NYC v. Sioux Falls, South Dakota). However, DHS is 
seeking comments and data from the public on this point. In addition, 
DHS lacks adequate data to accurately predict effects.
---------------------------------------------------------------------------

    \176\ As discussed elsewhere in the document, DHS uses a 
multiplier of 1.46 to establish a fully loaded wage that accounts 
for benefits and overhead costs in addition to gross salary.
---------------------------------------------------------------------------

8. Alternatives
Alternative 1: First-In, First-Out Registration Process
    In the development of this proposed rule, DHS considered an 
alternative to the proposed H-1B cap registration and selection 
process. The alternative considered was a first-in, first-out 
registration process, where USCIS would select the first petitioners to 
complete electronic registrations instead of using a random sampling 
process. This alternative would simplify the selection process for 
USCIS. However, it would likely create an unfair advantage for 
petitioners with relatively greater resources to complete registrations 
faster and in greater volume than other small entities that may not 
have the same resources or experience. DHS determined that this option 
would create issues for small entities and decided against it.
Alternative 2: Status Quo
    DHS also considered maintaining the current regulatory and policy 
guidelines for the H-1B cap selection process (the status quo 
alternative). Under this alternative, DHS would continue to expend 
resources towards opening and sorting petitions, identifying properly 
filed petitions, and removing duplicate petitions before proceeding 
with the petition selection process. In years of high petition volume, 
these duties would continue to present DHS with operational challenges 
that include greater labor needs and limited space at Service Centers 
where petitions are stored, sorted, and selected.
    Also, under the status quo, all petitioners seeking to file a 
petition on behalf of an H-1B worker would have to complete and file 
Form I-129 without any guarantee that their petition would be selected 
during the H-1B cap filing period, therefore expending time and 
resources to complete and submit the entire petition. As explained in 
section 5(a)(iii) of this analysis, under the current process, the 
total cost for all petitioners to complete and file an H-1B petition 
for an annual filling period ranges from $181.9 million to $246.7 
million, using lower bound and upper bound calculations. The status quo 
alternative is a much more costly process for petitioners as long as 
demand continues to exceed available visas. Additionally, the high 
costs of filing a full H-1B petition without the guarantee of obtaining 
a worker under the status quo could be a barrier to some small 
entities. The lower costs of a registration system could allow more 
small entities to submit a registration that otherwise may not file a 
full H-1B petition.

B. 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, Public Law 104-121 (March 29, 1996), requires Federal agencies to 
consider the potential impact of regulations on small entities during 
the development of their rules. The term ``small entities'' comprises 
of small businesses, not-for-profit organizations that are not dominant 
in their fields, and governmental jurisdictions with populations of 
less than 50,000. An ``individual'' is not defined by the RFA as a 
small entity and costs to an individual from a rule are not considered 
for RFA purposes. In addition, the courts have held that the RFA 
requires an agency to perform an initial regulatory flexibility 
analysis (IRFA) of small entity impacts only when a rule directly 
regulates small entities. Consequently, any indirect impacts from a 
rule to a small entity are not considered as costs for RFA purposes.
    This proposed rule may have direct impacts to those entities that 
petition on behalf of H-1B cap-subject workers. Generally, petitions 
are filed by a sponsoring employer who may incur some additional costs 
from the proposed registration requirement. Therefore, DHS examines the 
direct impact of this proposed rule on small entities in the analysis 
that follows.
1. Initial Regulatory Flexibility Analysis
    Small entities primarily impacted by this proposed rule are those 
that would incur additional direct costs to electronically register to 
file an H-1B cap-subject petition. DHS conducted a statistically valid 
sample analysis of H-1B cap-subject petitions to determine the number 
of small entities directly impacted by this rule.\177\ These costs are 
related to the additional opportunity cost of time for a selected small 
entity to complete the registration process proposed in this rule. 
Additionally, if a lawyer or other accredited representative completed 
the electronic registration on behalf of a petitioner, these additional 
costs would also include the opportunity costs of time to submit Form 
G-28. These opportunity costs of time would be an additional burden to 
completing and filing H-1B cap-subject petitions for selected entities. 
DHS welcomes any public comment on the methodology and conclusions on 
the number of small entities estimated and the impacts to those small 
entities.
---------------------------------------------------------------------------

    \177\ Although Form I-129 collects data on petitioners' numbers 
of employees and annual business income, the use of statistically 
valid random samples allow us to draw conclusions on the population 
as a whole. Additionally, more in-depth research of petitioner's 
information using this statistically valid sample ensures the 
integrity of the data needed to estimate the impact to small 
businesses likely to be affected by this proposed rule.
---------------------------------------------------------------------------

a. A Description of the Reasons Why the Action by the Agency Is Being 
Considered
    The purpose of this proposed rule is to streamline the H-1B cap-
subject petition process. In the last several years, USCIS has received 
large numbers of H-1B cap-subject petitions

[[Page 62439]]

that have far exceeded the annual numerical limitations set by Congress 
in the first few days of the filing season. DHS has found that USCIS 
spends an inordinate amount of time on handling the volume of petitions 
received within the first few days of the H-1B filing period. After 
expending USCIS resources to ensure proper processing of these 
petitions, USCIS still must reject and return petitions and associated 
fees that are not selected in the current H-1B cap-subject selection 
process. Petitioners are also adversely affected by the current 
petition process. Preparing and mailing H-1B cap-subject petitions, 
with the required filing fee, can be burdensome and costly for 
petitioners, especially if USCIS returns the petition because it was 
not selected in the current H-1B-subject cap selection process. This 
proposed registration process would improve the agency's ability to 
manage the H-1B cap-subject petition process and reduce the burden on 
those petitioners whose registrations are not selected and who are 
therefore ineligible to file an H-1B cap-subject petition for that 
fiscal year.
b. A Succinct Statement of the Objectives of, and Legal Basis for, the 
Proposed Rule
    DHS objectives and legal authority for this proposed rule are 
discussed in the preamble.
c. A Description of and, Where Feasible, an Estimate of the Number of 
Small Entities to Which the Proposed Changes Would Apply
    DHS conducted a statistically valid sample analysis of H-1B cap-
subject petitions to determine the maximum potential number of small 
entities directly impacted by this proposed rule. DHS utilized a 
subscription-based online database of U.S. entities, Hoovers Online, as 
well as two other open-access, free databases of public and private 
entities, Manta and Cortera, to determine the North American Industry 
Classification System (NAICS) code, revenue, and employee count for 
each entity.\178\ In order to determine a business' size, DHS first 
classified each entity by its NAICS code, and then used SBA guidelines 
to note the requisite revenue or employee count threshold for each 
entity. Some entities were classified as small based on their annual 
revenue and some by number of employees.
---------------------------------------------------------------------------

    \178\ The Hoovers website can be found at http://www.hoovers.com/; The Manta website can be found at http://www.manta.com/; and the Cortera website can be found at https://www.cortera.com/.
---------------------------------------------------------------------------

    Using FY 2016 data on H-1B cap-subject petitions selected in the H-
1B cap-subject selection process, DHS collected internal data for each 
filing organization.\179\ Each entity may make multiple filings. For 
instance, there were 95,839 H-1B cap-subject petitions selected,\180\ 
but only 20,046 \181\ unique entities that filed H-1B cap-subject 
petitions. DHS devised a methodology to conduct the small entity 
analysis based on a representative, statistically valid random sample 
of the potentially impacted population. To achieve a 95 percent 
confidence level and a 5 percent confidence interval on a population of 
20,046 entities, DHS used the standard statistical formula to determine 
that a minimum sample size of 377 entities was necessary. DHS created a 
sample size 30 percent greater than the 377 minimum necessary in order 
to increase the likelihood that our matches would meet or exceed the 
minimum required sample. Of the 491 entities \182\ sampled, 385 
instances resulted in entities defined as small (Table 25). Of the 385 
small entities, 293 entities were classified as small by revenue or 
number of employees. The remaining 92 entities were classified as small 
because information was not found (either no petitioner name was found 
or no information was found in the databases). A total of 103 entities 
were classified as not small. Therefore, of the 20,046 entities that 
filed at least one Form I-129 in FY 2016, DHS estimates that 78 percent 
or 15,636 entities are considered small based on SBA size 
standards.\183\
---------------------------------------------------------------------------

    \179\ USCIS Office of Performance and Qualify (OPQ), Performance 
Analysis and External Reporting (PAER), May 25, 2017.
    \180\ Number of petitions reported in this IRFA (95,839) shows 7 
more receipts than is shown in the population section of the 
Economic Analysis (95,832). This discrepancy is due to OPQ pulling 
the data for the IRFA (April 25, 2017) and the data for the Economic 
Analysis (May 22, 2017) from the same database at different times. 
During the time in between data pulls, petitioner(s) withdrew 7 H-1B 
petitions. We do not know which petitions were withdrawn. Therefore, 
the IRFA uses all petitions as of April 25, 2017.
    \181\ Number of unique entities reported in this IRFA (20,046) 
shows 426 more receipts than is shown in Table 7 of the costs 
section of the Economic Analysis (19,620). This discrepancy is due 
to OPQ pulling the data for the IRFA (April 25, 2017) and the data 
for the Economic Analysis (January 12, 2018) from the same database 
at different times. During the time in between data pulls, 
petitioner(s) withdrew H-1B petitions. We do not know which 
petitions were withdrawn. Therefore, the IRFA uses all petitions as 
of April 25, 2017.
    \182\ Calculation: 377 + (377 * 30 percent) = 491 (rounded).
    \183\ Calculation: 20,046 entities * 78 percent = 15,636 small 
entities (rounded).

   Table 25--Summary and Results of Small Entity Analysis of H-1B Cap-
                            Subject Petitions
------------------------------------------------------------------------
                                                           Proportion of
                Parameter                    Quantity         sample
                                                             (percent)
------------------------------------------------------------------------
Population--Selected H-1B cap-subject             95,839  ..............
 petitions..............................
Population--Unique Entities.............          20,046  ..............
Minimum Required Sample.................             377  ..............
Selected Sample.........................             491          100.00
Entities Classified as ``Not Small''
    by revenue..........................              98           19.96
    by number of employees..............               8            1.63
Entities Classified as ``Small''
    by revenue..........................             233           47.45
    by number of employees..............              60           12.21
    because no information found in                   92           18.75
     databases..........................
                                         -------------------------------
        Total Number of Small Entities..             385      \ a\ 78.41
------------------------------------------------------------------------
Source: USCIS analysis.
\a\ Calculation: 47.45 percent (Entities classified as small by revenue)
  + 12.21 percent (Entities classified as small by number of employees)
  + 18.75 percent (Entities classified as small because no information
  found in database) = 78 percent (total number of small entities,
  rounded).


[[Page 62440]]

    As previously stated, DHS classified each entity by its NAICS code 
to determine business' size. A list of the top 10 NAICS codes can be 
seen in Table 26.

             Table 26--Top 10 NAICS Industries Submitting Form I-129, Small Entity Analysis Results
----------------------------------------------------------------------------------------------------------------
                                                                                  Size standards  Size standards
             Rank                 NAICS code        NAICS U.S. industry title     in millions of   in number of
                                                                                    dollars \a\    employees \a\
----------------------------------------------------------------------------------------------------------------
1.............................          541511  Custom Computer Programming                $27.5  ..............
                                                 Services.
2.............................          541512  Computer Systems Design Services            27.5  ..............
3.............................          561499  All Other Business Support                  15.0  ..............
                                                 Services.
4.............................          541330  Engineering Services............            15.0  ..............
5.............................          511210  Software Publishers.............            38.5  ..............
6.............................          541611  Administrative Management and               15.0  ..............
                                                 General Management Consulting
                                                 Services.
7.............................          334413  Semiconductor and Related Device  ..............           1,250
                                                 Manufacturing.
8.............................          541618  Other Management Consulting                 15.0  ..............
                                                 Services.
9.............................          541690  Other Scientific and Technical              15.0  ..............
                                                 Consulting Services.
10............................          325412  Pharmaceutical Preparation        ..............           1,250
                                                 Manufacturing.
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
\a\ The Small Business Administration (SBA) has developed size standards to carry out the purposes of the Small
  Business Act and those size standards can be found in 13 CFR, section 121.201.

    The increase in cost per petition to file Form I-129 (and if 
relevant, Forms I-907 or G-28) on behalf of a cap-subject H-1B worker 
is the opportunity cost of time to create an account, complete the 
registration and file Form G-28 if registration is completed by a 
lawyer. As previously stated in section 5(b), the proposed costs would 
add $31.14 \184\ in cost to submit a registration for a single 
beneficiary if an HR specialist files, $152.19 \185\ in cost to submit 
a registration for a single beneficiary if an in-house lawyer files, 
and $264.35 \186\ in cost to submit a registration for a single 
beneficiary if an outsourced lawyer files (an average proposed cost of 
$149.23 per entity), which are summarized in Table 27. In order to 
calculate the impact of this increase, DHS estimated that the total 
costs associated with the registration increase for each entity, 
divided by sales revenue of that entity.\187\ \188\
---------------------------------------------------------------------------

    \184\ Calculation: $7.90 opportunity cost of account creation + 
$23.24 opportunity cost of registration = $31.14 added costs
    \185\ Calculation: $16.93 opportunity cost of account creation + 
$49.80 opportunity cost of registration + $87.65 cost to complete 
Form G-28 for in-house lawyer = $154.38 added costs.
    \186\ Calculation: $28.99 opportunity cost of account creation + 
$85.28 opportunity cost of registration + $150.08 cost to complete 
Form G-28 for in-house lawyer = $264.35 added costs.
    \187\ For HR specialists: Total Impact to Entity = Number of 
Petitions * ($31.14)/Entity Sales Revenue. For in-house lawyers: 
Total Impact to Entity = Number of Petitions * ($154.38)/Entity 
Sales Revenue. For outsourced lawyers: Total Impact to Entity = 
Number of Petitions * ($264.35)/Entity Sales Revenue.
    \188\ USCIS used the lower end of the sales revenue range for 
those entities where ranges were provided.

    Table 27--Proposed Cost per Registration Associated With the Registration Requirement by Type of Preparer
----------------------------------------------------------------------------------------------------------------
                                                                                                    Outsourced
                                                                HR specialist   In-house lawyer       lawyer
----------------------------------------------------------------------------------------------------------------
Proposed Cost for Single Registration........................          $31.14          $154.38          $264.35
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.

    Since entities can file multiple petitions, this analysis uses the 
number of petitions submitted by each entity. Entities that were 
considered small based on employee count with missing revenue data were 
excluded. Among the 229 small entities with reported revenue data, the 
greatest economic impact imposed by this proposed rule would be 2.227 
percent if an HR specialist files, 11.035 percent if an in-house lawyer 
files, and 18.896 percent if an outsourced lawyer files. The smallest 
economic impact would be 0.0001 percent if an HR specialist files, 
0.0007 percent if an in-house lawyer files and 0.0012 percent if an 
outsourced lawyer files. The average impact on all 229 small entities 
with revenue data would be 0.186 percent if an HR specialist files, 
0.921 percent if an in-house lawyer files and 1.576 percent if an 
outsourced lawyer files. DHS welcomes any public comments on the number 
of small entities estimated and the impact to those small entities, 
including whether or not it is more common for small entities to use 
in-house or outsourced lawyers during the H-1B cap selection process.
    As seen in Table 4, 97,198 H-1B cap-subject petitions are selected 
annually. As seen in Table 22, DHS estimates that 78 percent of 
selected petitioners are considered small based on SBA size standards. 
Therefore, DHS reasonably assumes that of the 97,198 selected 
petitioner population, 75,814 \189\ selected petitions are submitted by 
small entities. Next, DHS estimates the number of selected small 
entities with beneficiaries holding a master's degree or higher from a 
U.S. institution of higher education. To estimate this, DHS assumes 
that the percentage of petitions for the advanced degree exemption 
received annually by USCIS (29 percent), from section 4, is a 
reasonable percentage to estimate the relevant distribution among small 
entities. As stated previously, anecdotal evidence suggests that very 
few petitions do not align with the education requirements of the 
numerical limitation under which the petition was submitted. Therefore, 
of the selected 75,814 petitions submitted by small entities, DHS

[[Page 62441]]

estimates that 21,986 \190\ is the number of petitions with a 
beneficiary holding a master's degree or higher from a U.S. institution 
of higher education. DHS assumes 50,619 \191\ petitions are submitted 
by small entities for beneficiaries who have not earned a master's 
degree or higher from a U.S. institution of higher education (i.e. 
beneficiaries who have earned a bachelor's degree, foreign advanced 
degree, or advanced degree from an institution in the United States 
that does not qualify as a U.S. institution of higher education as 
defined at 20 U.S.C. 1001(a)). DHS is unable to quantitatively estimate 
the impact of the new selection process on petitioning employers. DHS 
does not anticipate petitioning employers would suffer economic harm 
from the decreased probability of selecting, under the proposed 
selection process, an H-1B beneficiary who has not earned a master's 
degree or higher from a U.S. institution of higher education. DHS 
welcomes any public comments on these estimations and the impact to 
those small entities.
---------------------------------------------------------------------------

    \189\ Calculation: 97,198 annually selected petitions * 78 
percent = 75,814 submitted by small entities (rounded).
    \190\ Calculation: 75,814 petitions * 29 percent = 21,986 
petitions.
    \191\ Calculation: 75,814-21,986 = 53,828 petitions
---------------------------------------------------------------------------

d. A Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Proposed Rule, Including an Estimate of 
the Classes of Small Entities That Will Be Subject to the Requirement 
and the Type of Professional Skills
    The proposed rule does not require any new professional skills for 
reporting, but does directly impose new ``reporting'' requirements in 
the form of registration for an H-1B cap subject petition. As stated 
earlier, DHS estimates that 78 percent of entities that filed at least 
one Form I-129 in FY 2016 were considered small based on SBA size 
standards. For unselected petitions the total cost would range from 
$2,324,975 to $19,736,899 depending on the preparer and for selected 
petitions the total cost for the proposed registration ranges from 
$2,360,862 to $20,041,430 depending on the preparer. DHS welcomes any 
public comment on these estimates and the impact to small 
entities.\192\
---------------------------------------------------------------------------

    \192\ Calculation: Unselected petitions: HR specialist = (95,720 
unselected petitions from Table 5 *78 percent) * $31.14 from Table 
27 = $2,324,975 (rounded); In- house lawyer = (95,720 unselected 
petitions from Table 5 *78 percent) * $154.38 from Table 27 = 
$11,526,319; Outsourced lawyers = (95,720 unselected petitions from 
Table 5 *78 percent) * $264.35 from Table 27 = $19,736,899. Selected 
petitions: HR specialists = (97,198 selected petitions from Table 5 
*78 percent) * $31.14 from Table 27 = $2,360,862 (rounded); In- 
house lawyer = (97,198 selected petitions from Table 5 *78 percent) 
* $154.38 from Table 27 = $11,704,165; Outsourced lawyers = (97,198 
selected petitions from Table 5 *78 percent) * $264.35 from Table 27 
= $20,041,430.
---------------------------------------------------------------------------

e. An Identification of All Relevant Federal Rules, to the Extent 
Practical, That May Duplicate, Overlap, or Conflict With the Proposed 
Rule
    DHS is unaware of any duplicative, overlapping, or conflicting 
Federal rules, but invites any comment and information regarding any 
such rules.
f. Description of Any Significant Alternatives to the Proposed Rule 
That Accomplish the Stated Objectives of Applicable Statutes and That 
Minimize Any Significant Economic Impact of the Proposed Rule on Small 
Entities
    The proposed rule would add a registration requirement for all 
petitioners who seek to file an H-1B cap-subject petition. DHS 
considered alternative solutions that are described in further detail 
in Executive Orders 12866 and 13653. One alternative was a first-in, 
first-out registration process where USCIS would select registrations 
strictly in the order in which registrations are properly submitted. 
This alternative would not minimize the impact on small entities, but 
rather would disadvantage small entities that would have to compete 
with the resources and personnel of larger entities, which may enable 
larger entities to submit registrations faster and sooner than small 
entities. DHS decided against the alternative described.
    Additionally, the status quo alternative is a much more costly 
process for petitioners as long as demand continues to exceed available 
visas. The high costs of filing a full H-1B petition without the 
guarantee of obtaining a worker under the status quo could be a barrier 
to some small entities. The lower costs of a registration system could 
allow more small entities to submit a registration that otherwise may 
not file a full H-1B petition. DHS welcomes any public comments on 
other possible alternatives to help mitigate the proposed rule's impact 
to small entities.

C. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among 
other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and tribal governments. Title II of the UMRA 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed or final agency rule 
that may result in a $100 million or more expenditure (adjusted 
annually for inflation) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector. The value 
equivalent of $100 million in 1995 adjusted for inflation to 2017 
levels by the Consumer Price Index for All Urban Consumers (CPI-U) is 
$161 million.
    This proposed rule does not exceed the $100 million expenditure in 
any 1 year when adjusted for inflation ($161 million in 2017 dollars), 
and this rulemaking does not contain such mandates. The requirements of 
Title II of the Act, therefore, do not apply, and the Department has 
not prepared a statement under the Act.

D. Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed rule is not a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Act of 1996. This proposed 
rule would 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 foreign-based companies in domestic and export markets. 
However, as some small businesses may be impacted under this proposed 
regulation, DHS has prepared an Initial Regulatory Flexibility Analysis 
(IRFA) under the Regulatory Flexibility Act (RFA).

E. Executive Order 13132 (Federalism)

    This proposed rule would 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 E.O. 13132, DHS has determined that this rulemaking does not have 
significant Federalism implications to warrant the preparation of 
federalism summary impact statement.

F. Executive Order 12988 (Civil Justice Reform)

    This proposed rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

G. National Environmental Policy Act

    DHS analyzes actions to determine whether NEPA applies to them and, 
if so, what degree of analysis is required. DHS Directive (Dir) 023-01 
Rev. 01 and

[[Page 62442]]

Instruction (Inst.) 023-01-001 rev. 01 establish the procedures that 
DHS and its components use to comply with NEPA and the Council on 
Environmental Quality (CEQ) regulations for implementing NEPA, 40 CFR 
parts 1500 through 1508. The CEQ regulations allow federal agencies to 
establish, with CEQ review and concurrence, categories of actions 
(``categorical exclusions'') which experience has shown do not 
individually or cumulatively have a significant effect on the human 
environment and, therefore, do not require an Environmental Assessment 
(EA) or Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(1)(iii), 
1508.4. DHS Instruction 023-01-001 Rev. 01 establishes such Categorical 
Exclusions that DHS has found to have no such effect. Inst. 023-01-001 
Rev. 01 Appendix A Table 1. For an action to be categorically excluded, 
DHS Inst. 023-01-001 Rev. 01 requires the action to satisfy each of the 
following three conditions: (1) The entire action clearly fits within 
one or more of the Categorical Exclusions; (2) the action is not a 
piece of a larger action; and (3) no extraordinary circumstances exist 
that create the potential for a significant environmental effect. Inst. 
023-01-001 Rev. 01 section V.B (1)-(3).
    DHS analyzed this action and has concluded that NEPA does not apply 
due to the excessively speculative nature of any effort to conduct an 
impact analysis. Nevertheless, if NEPA did apply to this action, the 
action clearly would come within our categorical exclusion A.3(d) as 
set forth in DHS Inst. 023-01-001 Rev. 01, Appendix A, Table 1.
    As discussed in more detail throughout this NPRM, this proposed 
rule would require petitioners seeking to file H-1B cap-subject 
petitions to first electronically register with USCIS during a 
designated registration period, and USCIS would only allow those 
petitioners whose registrations are selected to file H-1B petitions for 
the beneficiary named in the registration. In addition, the proposed 
rule would amend the order in which USCIS randomly selects H-1B 
beneficiaries who may be counted toward the projected number of 
petitions needed to reach the H-1B regular cap (65,000) or the H-1B 
advanced degree exemption allocation (20,000). Under the proposed 
amendments, USCIS would randomly select registrations that may be 
counted toward the projected number of petitions needed to reach the H-
1B advanced degree exemption allocation under the regular cap first 
until the projected number needed to meet the regular cap is reached, 
and only then would USCIS randomly select registrations that are 
eligible for the advanced degree exemption until the projected number 
of petitions needed to meet the advanced degree exemption allocation is 
reached. This proposed change would be likely to increase the number of 
beneficiaries with a master's or higher degrees from a U.S. institution 
of higher education that would be selected. However, this rule does not 
alter the statutory limitations on the numbers of nonimmigrants who may 
be issued new H-1B visas or granted initial H-1B status, or who would 
consequently be admitted into the United States as H-1B nonimmigrants, 
or allowed to change their status to H-1B, or extend their stay in H-1B 
status. This rule is not part of a larger action and presents no 
extraordinary circumstances creating the potential for significant 
environmental effects. Therefore, if NEPA were determined to apply, 
this rule would be categorically excluded from further NEPA review.

H. Paperwork Reduction Act

USCIS H-1B Registration Tool
    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
agencies are required to submit to OMB, for review and approval, any 
reporting requirements inherent in a rule.
    DHS and USCIS invite the general public and other Federal agencies 
to comment on the impact to the proposed collection of information. In 
accordance with the PRA, the information collection notice is published 
in the Federal Register to obtain comments regarding the proposed edits 
to the information collection instrument.
    Comments are encouraged and will be accepted for 60 days from the 
publication date of the proposed rule. All submissions received must 
include the OMB Control Number 1615-NEW in the body of the letter and 
the agency name. To avoid duplicate submissions, please use only one of 
the methods under the ADDRESSES and I. Public Participation section of 
this rule to submit comments. Comments on this information collection 
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 functions 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 information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses.
    Overview of information collection:
    (1) Type of Information Collection: New Collection.
    (2) Title of the Form/Collection: H-1B Registration Tool.
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: No Agency Form Number; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Business or other for-profit. USCIS 
uses the data collected on this form to determine which petitioners 
would be informed that they may submit a USCIS Form I-129 H-1B cap-
subject nonimmigrant petition. USCIS is proposing to collect the 
minimum amount of information needed to identify the prospective H-1B 
cap-subject petitioner and the named beneficiary, to eliminate 
duplicate registrations, and to match selected registrations with 
subsequently filed H-1B cap-subject petitions.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of respondents for the information collection H-1B 
Registration Tool is 192,918 and the estimated hour burden per response 
is .5 hours.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection is 96,459 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this collection of information is $0.
USCIS Form I-129
    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
agencies are required to submit to OMB, for review and approval, any 
reporting requirements inherent in a rule.
    DHS and USCIS invite the general public and other Federal agencies 
to comment on the impact to the proposed collection of information. In 
accordance with the PRA, the information collection notice is published 
in the Federal Register to obtain comments

[[Page 62443]]

regarding the proposed edits to the information collection instrument.
    Comments are encouraged and will be accepted for 60 days from the 
publication date of the proposed rule. All submissions received must 
include the OMB Control Number 1615-0009 in the body of the letter and 
the agency name. To avoid duplicate submissions, please use only one of 
the methods under the ADDRESSES and I. Public Participation section of 
this rule to submit comments. Comments on this information collection 
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 functions 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 information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses.
    Overview of information collection:
    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: Petition for Nonimmigrant Worker.
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: I-129; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Business or other for-profit. USCIS 
uses the data collected on this form to determine eligibility for the 
requested nonimmigrant petition and/or requests to extend or change 
nonimmigrant status. An employer (or agent, where applicable) uses this 
form to petition USCIS for an alien to temporarily enter as a 
nonimmigrant in certain classifications. An employer (or agent, where 
applicable) also uses this form to request an extension of stay or 
change of status on behalf of the alien worker. The form serves the 
purpose of standardizing requests for certain nonimmigrant workers, and 
ensuring that basic information required for assessing eligibility is 
provided by the petitioner while requesting that beneficiaries be 
classified under certain nonimmigrant employment categories. It also 
assists USCIS in compiling information required by Congress annually to 
assess effectiveness and utilization of certain nonimmigrant 
classifications.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of respondents for the information collection I-129 is 
294,751 and the estimated hour burden per response is 2.34 hours; the 
estimated total number of respondents for the information collection E-
1/E-2 Classification Supplement to Form I-129 is 4,760 and the 
estimated hour burden per response is 0.67; the estimated total number 
of respondents for the information collection Trade Agreement 
Supplement to Form I-129 is 3,057 and the estimated hour burden per 
response is 0.67; the estimated total number of respondents for the 
information collection H Classification Supplement to Form I-129 is 
96,291 and the estimated hour burden per response is 2; the estimated 
total number of respondents for the information collection H-1B and H-
1B1 Data Collection and Filing Fee Exemption Supplement is 96,291 and 
the estimated hour burden per response is 1; the estimated total number 
of respondents for the information collection L Classification 
Supplement to Form I-129 is 37,831 and the estimated hour burden per 
response is 1.34; the estimated total number of respondents for the 
information collection O and P Classifications Supplement to Form I-129 
is 22,710 and the estimated hour burden per response is 1; the 
estimated total number of respondents for the information collection Q-
1 Classification Supplement to Form I-129 is 155 and the estimated hour 
burden per response is 0.34; the estimated total number of respondents 
for the information collection R-1 Classification Supplement to Form I-
129 is 6,635 and the estimated hour burden per response is 2.34.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection is 1,072,810 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this collection of information is $70,680,553.
USCIS Form G-28
    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
agencies are required to submit to OMB, for review and approval, any 
reporting requirements inherent in a rule.
    DHS and USCIS invite the general public and other Federal agencies 
to comment on the impact to the proposed collection of information. In 
accordance with the PRA, the information collection notice is published 
in the Federal Register to obtain comments regarding the proposed edits 
to the information collection instrument.
    Comments are encouraged and will be accepted for 60 days from the 
publication date of the proposed rule. All submissions received must 
include the OMB Control Number 1615-0105 in the body of the letter and 
the agency name. To avoid duplicate submissions, please use only one of 
the methods under the ADDRESSES and I. Public Participation section of 
this rule to submit comments. Comments on this information collection 
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 functions 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 information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses.
    Overview of information collection:
    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: Notice of Entry of Appearance as 
Attorney or Accredited Representative; Notice of Entry of Appearance as 
Attorney In matters Outside the Geographical Confines of the United 
States.
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: G-28; G-28I; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Business or other for-profit. The 
data collected on Forms G-28 and G-28I is used by DHS to determine 
eligibility of the individual to appear as a representative. Form G-28 
is used by attorneys admitted to the

[[Page 62444]]

practice of law in the United States and accredited representatives of 
certain non-profit organizations recognized by the Department of 
Justice. Form G-28I is used by attorneys admitted to the practice of 
law in countries other than the United States and only in matters in 
DHS offices outside the geographical confines of the United States. If 
the representative is eligible, the form is filed with the case and the 
information is entered into DHS systems for whatever type of 
application or petition it may be.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of respondents for the information collection G-28 paper 
filing is 2,638,276 and the estimated hour burden per response is 0.833 
hours; the estimated total number of respondents for the information 
collection G-28 electronic filing is 281,950 and the estimated hour 
burden per response is 0.667 hours; the estimated total number of 
respondents for the information collection G-28I is 25,057 and the 
estimated hour burden per response is 0.700 hours.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection is 2,403,285 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this collection of information is $0.
USCIS ICAM
    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
agencies are required to submit to OMB, for review and approval, any 
reporting requirements inherent in a rule.
    DHS and USCIS invite the general public and other Federal agencies 
to comment on the impact to the proposed collection of information. In 
accordance with the PRA, the information collection notice is published 
in the Federal Register to obtain comments regarding the proposed edits 
to the information collection instrument.
    Comments are encouraged and will be accepted for 60 days from the 
publication date of the proposed rule. All submissions received must 
include the OMB Control Number 1615-0122 in the body of the letter and 
the agency name. To avoid duplicate submissions, please use only one of 
the methods under the ADDRESSES and I. Public Participation section of 
this rule to submit comments. Comments on this information collection 
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 functions 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 information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses.
    Overview of information collection:
    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: USCIS Identity and Credentialing 
Access Management (ICAM).
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: No Form; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Individuals or households. In order 
to interact with USCIS electronic systems accessible through the USCIS 
ICAM portal, a first-time user must establish an account. The account 
creation process requires the user to submit a valid email address; 
create a password; select their preference for receiving a one-time 
password (via email, mobile phone, or both); select five password reset 
questions and responses; and indicate the account type they want to set 
up (customer or legal representative). The account creation and the 
account login processes both require the user to receive and submit a 
one-time password. The one-time password can be provided either as an 
email to an email address or to a mobile phone via text message.
    USCIS ICAM currently grants access to myUSCIS and the information 
collections available for online filing. ICAM would also be the portal 
through which accounts to submit H-1B cap registrations would be 
created and accessed.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of respondents for the information collection ICAM is 
2,813,225 and the estimated hour burden per response is 0.167 hours.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection is 469,809 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this collection of information is $0.

List of Subjects in 8 CFR Part 214

    Administrative practice and procedure, Aliens, Cultural exchange 
programs, Employment, Foreign officials, Health professions, Reporting 
and recordkeeping requirements, Students.

    Accordingly, DHS proposes to amend part 214 of chapter I of title 8 
of the Code of Federal Regulations as follows:

PART 214--NONIMMIGRANT CLASSES

0
1. The authority citation for part 214 continues to read as follows:

    Authority:  6 U.S.C. 202, 236; 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; 48 U.S.C. 1806; 8 CFR part 2.

0
2. Section 214.2 is amended by:
0
a. Redesignating paragraph (h)(9)(i)(B) as paragraph (h)(2)(i)(I) and 
revising newly redesignated paragraph (h)(2)(i)(I);
0
b. Adding paragraph (h)(8)(iii);
0
c. Redesignating paragraph (h)(8)(ii)(F) as paragraph (h)(8)(iii)(F);
0
d. In newly redesignated paragraphs (h)(8)(iii)(F)(6)(i) and (ii), 
removing the reference to ``(h)(8)(ii)(F)(6)'' and adding in its place 
``(h)(8)(iii)(F)(6)'';
0
e. Removing paragraph (h)(8)(ii)(B);
0
f. Redesignating paragraphs (h)(8)(ii)(C) and (D) as paragraphs 
(h)(8)(ii)(B) and (C), respectively;
0
g. Adding paragraphs (h)(8)(iv) and (v);
0
h. Redesignating paragraphs (h)(8)(ii)(E) introductory text and 
(h)(8)(ii)(E)(1) through (6) as paragraphs (h)(8)(vi) introductory text 
and (h)(8)(vi)(A) through (F), respectively;
0
i. Adding a heading for newly redesignated paragraph (h)(8)(vi);
0
j. In newly redesignated paragraph (h)(8)(vi)(A), removing the 
reference to ``(h)(8)(ii)(F)(3)'' and adding in its place 
``(h)(8)(vi)(C)'';
0
k. In newly redesignated paragraph (h)(8)(vi)(B), removing the 
references to

[[Page 62445]]

``(h)(8)(ii)(F)(1)'' and ``(h)(8)(ii)(F)(3)'' and adding in their place 
``(h)(8)(vi)(A)'' and ``(h)(8)(vi)(C),'' respectively;
0
l. Adding paragraph (h)(8)(vii); and
0
m. Revising paragraph (h)(9)(i).
    The additions and revisions read as follows:


Sec.  [thinsp]214.2   Special requirements for admission, extension, 
and maintenance of status.

* * * * *
    (h) * * *
    (2) * * *
    (i) * * *
    (I) Time of filing. A petition filed under section 101(a)(15)(H) of 
the Act may not be filed earlier than 6 months before the date of 
actual need for the beneficiary's services or training.
* * * * *
    (8) * * *
    (iii) H-1B numerical limitations--(A) Registration--(1) 
Registration requirement. Except as provided in paragraph (h)(8)(iv) of 
this section, before a petitioner can file an H-1B cap-subject petition 
for a beneficiary who may be counted under section 214(g)(1)(A) of the 
Act (``H-1B regular cap'') or under section 214(g)(5)(C) of the Act 
(``H-1B advanced degree exemption''), the petitioner must register to 
file a petition on behalf of an alien beneficiary electronically 
through the USCIS website (www.uscis.gov). To be eligible to file a 
petition for a beneficiary who may be counted against the H-1B regular 
cap or the H-1B advanced degree exemption for a particular fiscal year, 
a registration must be properly submitted in accordance with 8 CFR 
103.2(a)(1), paragraph (h)(8)(iii) of this section, and the form 
instructions. A petitioner may file an H-1B cap-subject petition on 
behalf of a registered beneficiary only after the petitioner's 
registration for that beneficiary has been selected for that fiscal 
year. USCIS will notify the petitioner of the selection of the 
petitioner's registered beneficiaries.
    (2) Limitation on beneficiaries. A petitioner must electronically 
submit a separate registration to file a petition for each beneficiary 
it seeks to register, and each beneficiary must be named. A petitioner 
may only submit one registration per beneficiary in any fiscal year. If 
a petitioner submits more than one registration per beneficiary in the 
same fiscal year, all registrations filed by that petitioner relating 
to that beneficiary for that fiscal year will be considered invalid.
    (3) Initial registration period. The annual initial registration 
period will last a minimum of 14 calendar days and will start at least 
14 calendar days before the earliest date on which H-1B cap-subject 
petitions may be filed for a particular fiscal year, consistent with 
paragraph (h)(2)(i)(I) of this section. USCIS will announce the start 
and end dates of the initial registration period on the USCIS website 
at www.uscis.gov for each fiscal year.
    (4) Limitation on requested start date. A petitioner may submit a 
registration during the initial registration period only if the 
requested start date for the beneficiary is the first business day for 
the applicable fiscal year. If USCIS keeps the registration period open 
beyond the initial registration period, or determines that it is 
necessary to re-open the registration period, a petitioner may submit a 
registration with a requested start date after the first business day 
for the applicable fiscal year, as long as the date of registration is 
no more than 6 months before the requested start date.
    (5) Regular cap selection. In determining whether there are enough 
registrations to meet the H-1B regular cap, USCIS will consider all 
properly submitted registrations relating to beneficiaries that may be 
counted under section 214(g)(1)(A) of the Act, including those that may 
also be counted under section 214(g)(5)(C) of the Act.
    (i) Fewer registrations than needed to meet the H-1B regular cap. 
At the end of the annual initial registration period, if USCIS 
determines that it has received fewer registrations than needed to meet 
the H-1B regular cap, USCIS will notify all petitioners that have 
properly registered that their registrations have been selected. USCIS 
will keep the registration period open beyond the initial registration 
period, until it determines that it has received a sufficient number of 
registrations to meet the H-1B regular cap. Once USCIS has received a 
sufficient number of registrations to meet the H-1B regular cap, USCIS 
will no longer accept registrations for petitions subject to the H-1B 
regular cap under section 214(g)(1)(A). USCIS will monitor the number 
of registrations received and will notify the public of the date that 
USCIS has received the necessary number of registrations (the ``final 
registration date''). The day the public is notified will not control 
the applicable final registration date. When necessary to ensure the 
fair and orderly allocation of numbers under Section 214(g)(1)(A) of 
the Act, USCIS may randomly select the remaining number of 
registrations deemed necessary to meet the H-1B regular cap from among 
the registrations received on the final registration date. This random 
selection will be made via computer-generated selection.
    (ii) Sufficient registrations to meet the H-1B regular cap during 
initial registration period. At the end of the initial registration 
period, if USCIS determines that it has received more than sufficient 
registrations to meet the H-1B regular cap, USCIS will no longer accept 
registrations under section 214(g)(1)(A) of the Act and will notify the 
public of the final registration date. USCIS will randomly select from 
among the registrations properly submitted during the initial 
registration period the number of registrations deemed necessary to 
meet the H-1B regular cap. This random selection will be made via 
computer-generated selection.
    (6) Advanced degree exemption selection. After USCIS has determined 
it will no longer accept registrations under section 214(g)(1)(A) of 
the Act, USCIS will determine whether there is a sufficient number of 
remaining registrations to meet the H-1B advanced degree exemption.
    (i) Fewer registrations than needed to meet the H-1B advanced 
degree exemption numerical limitation. If USCIS determines that it has 
received fewer registrations than needed to meet the H-1B advanced 
degree exemption numerical limitation, USCIS will notify all 
petitioners that have properly registered that their registrations have 
been selected. USCIS will continue to accept registrations to file 
petitions that may be counted toward the H-1B advanced degree exemption 
numerical limitation under section 214(g)(5)(C) of the Act until USCIS 
determines that it has received enough registrations to meet the H-1B 
advanced degree exemption numerical limitation. USCIS will monitor the 
number of registrations received and will notify the public of the date 
that USCIS has received the necessary number of registrations (the 
``final registration date''). The day the public is notified will not 
control the applicable final registration date. When necessary to 
ensure the fair and orderly allocation of numbers under Section 
214(g)(1)(A) of the Act, USCIS may randomly select the remaining number 
of registrations deemed necessary to meet the H-1B advanced degree 
exemption numerical limitation from among the registrations properly 
submitted on the final registration date. This random selection will be 
made via computer-generated selection.
    (ii) Sufficient registrations to meet the H-1B advanced degree 
exemption numerical limitation. If USCIS determines that it has 
received more than enough registrations to meet the H-1B advanced 
degree exemption

[[Page 62446]]

numerical limitation, USCIS will no longer accept registrations that 
may be counted under section 214(g)(5)(C) of the Act and will notify 
the public of the final registration date. USCIS will randomly select 
the number of registrations needed to meet the H-1B advanced degree 
exemption numerical limitation from among the remaining registrations 
that may be counted against the advanced degree exemption numerical 
limitation. This random selection will be made via computer-generated 
selection.
    (7) Increase to the number of registrations projected to meet the 
H-1B regular cap or advanced degree exemption allocations in a fiscal 
year. Unselected registrations will remain on reserve for the 
applicable fiscal year. If USCIS determines that it needs to increase 
the number of registrations projected to meet the H-1B regular cap or 
advanced degree exemption allocation, and select additional 
registrations, USCIS will select from among the registrations that are 
on reserve a sufficient number to meet the H-1B regular cap or advanced 
degree exemption numerical limitation, as applicable. If all of the 
registrations on reserve are selected and there are still fewer 
registrations than needed to meet the H-1B regular cap or advanced 
degree exemption numerical limitation, as applicable, USCIS may reopen 
the applicable registration period until USCIS determines that it has 
received a sufficient number of registrations projected as needed to 
meet the H-1B regular cap or advanced degree exemption numerical 
limitation. USCIS will monitor the number of registrations received and 
will notify the public of the date that USCIS has received the 
necessary number of registrations (the new ``final registration 
date''). The day the public is notified will not control the applicable 
final registration date. When necessary to ensure the fair and orderly 
allocation of numbers, USCIS may randomly select the remaining number 
of registrations deemed necessary to meet the H-1B regular cap or 
advanced degree exemption numerical limitation from among the 
registrations properly submitted on the final registration date. If the 
registration period will be re-opened, USCIS will announce the start of 
the re-opened registration period on the USCIS website at 
www.uscis.gov.
    (B) Confirmation. Petitioners will receive electronic notification 
that USCIS has accepted a registration for processing.
    (C) Notification to file H-1B cap-subject petitions. USCIS will 
notify all petitioners with selected registrations that the petitioner 
is eligible to file an H-1B cap-subject petition on behalf of the 
beneficiary named in the notice within the filing period indicated on 
the notice.
    (D) H-1B cap-subject petition filing following registration--(1) 
Filing procedures. In addition to any other applicable requirements, a 
petitioner may file an H-1B petition for a beneficiary that may be 
counted under section 214(g)(1)(A) or section 214(g)(5)(C) of the Act 
only if the petitioner's registration to file a petition on behalf of 
the beneficiary named in the petition was selected beforehand by USCIS 
and only within the filing period indicated on the notice. A petitioner 
may not substitute the beneficiary named in the original registration 
or transfer the registration to another petitioner. If a petitioner 
files an H-1B cap-subject petition based on a registration that was not 
selected beforehand by USCIS, or based on a registration for a 
different beneficiary than the beneficiary named in the petition, the 
H-1B cap-subject petition will be denied or rejected.
    (2) Filing period. An H-1B cap-subject petition must be properly 
filed within the filing period indicated on the relevant selection 
notice. The filing period for filing the H-1B cap-subject petition will 
be at least 60 days. If petitioners do not meet these requirements, 
USCIS will deny or reject the H-1B cap-subject petition.
    (E) Calculating the number of registrations needed to meet the H-1B 
regular cap and H-1B advanced degree exemption allocation. When 
calculating the number of registrations needed to meet the H-1B regular 
cap and the H-1B advanced degree exemption numerical limitation for a 
given fiscal year, USCIS will take into account historical data related 
to approvals, denials, revocations, and other relevant factors. If 
necessary, USCIS may increase those numbers throughout the fiscal year.
* * * * *
    (iv) Suspension of registration requirement--(A) Determination to 
suspend registration requirement. USCIS may suspend the H-1B 
registration requirement, in its discretion, if it determines that the 
registration process is inoperable for any reason. If USCIS suspends 
the registration requirement, USCIS will make an announcement of the 
suspension on its website (http://www.uscis.gov) along with the opening 
date of the applicable H-1B cap-subject petition-filing period.
    (B) Petition-based cap-subject selections in event of suspended 
registration process. In any year in which USCIS suspends the H-1B 
registration process for cap-subject petitions, USCIS will allow for 
the submission of H-1B petitions notwithstanding paragraph (h)(8)(iii) 
of this section and conduct a cap-subject selection process based on 
the petitions that are received. USCIS will deny petitions indicating 
that they are exempt from the H-1B regular cap and the H-1B advanced 
degree exemption if USCIS determines that they are subject to either 
the H-1B regular cap or H-1B advanced degree exemption, unless the 
petition can still be counted under the H-1B regular cap or advanced 
degree exemption at the time of determination. If a petition is denied 
under this paragraph (h)(8)(iv)(B), USCIS will not return or refund 
filing fees.
    (1) H-1B regular cap selection in event of suspended registration 
process. In determining whether there are enough H-1B cap-subject 
petitions to meet the H-1B regular cap, USCIS will consider all 
petitions properly submitted in accordance with 8 CFR 103.2 relating to 
beneficiaries that may be counted under section 214(g)(1)(A) of the 
Act, including those that may also be counted under section 
214(g)(5)(C) of the Act. When calculating the number of petitions 
needed to meet the H-1B regular cap USCIS will take into account 
historical data related to approvals, denials, revocations, and other 
relevant factors. USCIS will monitor the number of petitions received 
and will announce on its website the date that it receives the number 
of petitions projected as needed to meet the H-1B regular cap (the 
``final receipt date''). The date the announcement is posted will not 
control the final receipt date. When necessary to ensure the fair and 
orderly allocation of numbers under the H-1B regular cap, USCIS may 
randomly select via computer-generated selection the remaining number 
of petitions deemed necessary to meet the H-1B regular cap from among 
the petitions properly submitted on the final receipt date. If the 
final receipt date is any of the first five business days on which 
petitions subject to the H-1B regular cap may be received (i.e., if the 
cap is reached on any one of the first five business days that filings 
can be made), USCIS will randomly select from among all the petitions 
properly submitted during the first five business days the number of 
petitions deemed necessary to meet the H-1B regular cap. After any 
random selection under this paragraph (h)(8)(iv)(B)(1), petitions that 
are subject to the H-1B regular cap and that do not qualify for the H-
1B advanced degree

[[Page 62447]]

exemption will be rejected if they are not randomly selected or were 
received after the final receipt date.
    (2) Advanced degree exemption selection in event of suspended 
registration process. After USCIS has received a sufficient number of 
petitions to meet the H-1B regular cap and, as applicable, completed 
the random selection process of petitions for the H-1B regular cap, 
USCIS will determine whether there is a sufficient number of remaining 
petitions to meet the H-1B advanced degree exemption numerical 
limitation. When calculating the number of petitions needed to meet the 
H-1B advanced degree exemption numerical limitation USCIS will take 
into account historical data related to approvals, denials, 
revocations, and other relevant factors. USCIS will monitor the number 
of petitions received and will announce on its website the date that it 
receives the number of petitions projected as needed to meet the H-1B 
advanced degree exemption numerical limitation (the ``final receipt 
date''). The date the announcement is posted will not control the final 
receipt date. When necessary to ensure the fair and orderly allocation 
of numbers under the H-1B advanced degree exemption, USCIS may randomly 
select via computer-generated selection the remaining number of 
petitions deemed necessary to meet the H-1B advanced degree exemption 
numerical limitation from among the petitions properly submitted on the 
final receipt date. If the final receipt date is any of the first five 
business days on which petitions subject to the H-1B advanced degree 
exemption may be received (i.e., if the numerical limitation is reached 
on any one of the first five business days that filings can be made), 
USCIS will randomly select from among all the petitions properly 
submitted during the first five business days the number of petitions 
deemed necessary to meet the H-1B advanced degree exemption numerical 
limitation. After any random selection under this paragraph 
(h)(8)(iv)(B)(2), petitions that are not randomly selected or that were 
received after the final receipt date will be rejected.
    (v) Severability. The requirement to submit a registration for an 
H-1B cap-subject petition and the selection process based on properly 
submitted registrations under paragraph (h)(8)(iii) of this section are 
intended to be severable from paragraph (h)(8)(iv) of this section. In 
the event paragraph (h)(8)(iii) is not implemented, or in the event 
that paragraph (h)(8)(iv) is not implemented, DHS intends that either 
of those provisions be implemented as an independent rule, without 
prejudice to petitioners in the United States under this regulation, as 
consistent with law.
    (vi) H-1C numerical limitations. * * *
    (vii) H-2B numerical limitations. When calculating the numerical 
limitations under section 214(g)(1)(B) and 214(g)(10) of the Act for a 
given fiscal year, USCIS will make numbers available to petitions in 
the order in which the petitions are filed. USCIS will make projections 
of 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. USCIS will monitor 
the number of petitions (including the number of beneficiaries 
requested when necessary) received and will notify the public of the 
date that USCIS has received the necessary number of petitions (the 
``final receipt date''). The day the public is notified will not 
control the final receipt date. When necessary to ensure the fair and 
orderly allocation of numbers subject to the numerical limitations in 
214(g)(1)(B) and 214(g)(10) of the Act, USCIS may randomly select from 
among the petitions received on the final receipt date the remaining 
number of petitions deemed necessary to generate the numerical limit of 
approvals. This random selection will be made via computer-generated 
selection. Petitions subject to a numerical limitation not randomly 
selected or that were received after the final receipt date will be 
rejected. Petitions indicating that they are exempt from the numerical 
limitation but that are determined by USCIS after the final receipt 
date to be subject to the numerical limit will be denied and filing 
fees will not be returned or refunded. If the final receipt date is any 
of the first five business days on which petitions subject to the 
applicable numerical limit may be received (i.e., if the numerical 
limit is reached on any one of the first five business days that 
filings can be made), USCIS will randomly apply all of the numbers 
among the petitions received on any of those five business days.
    (9) * * *
    (i) Approval. USCIS will consider all the evidence submitted and 
any other evidence independently required to assist in adjudication. 
USCIS will notify the petitioner of the approval of the petition on a 
Notice of Action. The approval notice will include the beneficiary's 
(or beneficiaries') name(s) and classification and the petition's 
period of validity. A petition for more than one beneficiary and/or 
multiple services may be approved in whole or in part. The approval 
notice will cover only those beneficiaries approved for classification 
under section 101(a)(15)(H) of the Act.
* * * * *

Kirstjen M. Nielsen,
Secretary.
[FR Doc. 2018-26106 Filed 11-30-18; 8:45 am]
 BILLING CODE P