AILA submits comments on H-1B registration regulation

The American Immigration Lawyers Association (AILA) has submitted comments during the public comment period for the H-1B online registration fee rule. The rule, which U.S. Citizenship and Immigration Services (USCIS) has said it plans to introduce this coming cap season, will require petitioners to file an online registration form for each prospective H-1B candidate, using an H-1B registration tool, and pay a $10 fee per registration.

Key points:

• Timing of the H-1B registration system. Recognizing that the agency has said it intends to implement the registration system for the coming cap season, AILA urges USCIS to finalize the regulation and complete testing of the system no later than Nov. 1, to give U.S. companies sufficient time to adjust their H-1B filing preparations and familiarize themselves with the system before the initial registration period is announced.
• Bundling payment for multiple petitions. While USCIS has indicated that H-1B petitioners will be able to bundle multiple registration fees into one payment, it has not indicated whether they will be able to make several bundled payments over the course of the registration period, or whether each petitioner will be limited to one bundled payment. AILA recommends that the final rule give petitioners the ability to make several bundled fee payments, as larger U.S. companies are likely to add new H-1B candidates during the registration period.
• Payment through Pay.gov portal. According to the proposed rule, petitioners will be required to pay their H-1B registration fees through the Pay.gov portal. AILA is asking USCIS to confirm whether attorneys representing companies will be able to pay on behalf of their clients and whether there will be an option to pay via withdrawal from a bank account. Additionally, as most employers are not familiar with the Pay.gov portal, AILA strongly encourages USCIS to provide outreach and trainings on how to use the portal well before the initial registration period to help reduce uncertainty and prevent overburdening of the portal.
• Preventing speculative registrations. AILA is concerned that the $10 registration fee will not prevent speculative registrations and recommends that the agency consider that a high number of selected registrations may end up not being filed or being denied. AILA also recommends that USCIS reserve enough unselected registrations that could be invited to file if the number of approved petitions falls short of the numerical caps.

Background: USCIS has taken steps in recent months to implement the H-1B registration system for the upcoming cap season. The agency proposed a $10 H-1B registration fee rule on Sept. 4 and opened a 30-day public comment period that ended Oct. 4. The agency also released a screen shot of the H-1B registration tool earlier this month with a comment period ending Nov. 8.

BAL Analysis: The comments indicate some of the concerns of the immigration bar about the timing and implementation of the H-1B registration system and their impact on employers who are now beginning to prepare for cap season. It is hoped that USCIS will address these concerns in the final regulation and in its testing and rollout of the system. Employers should continue to anticipate that the agency is likely to implement the H-1B registration system for the coming cap season, and that the registration period would likely be held sometime between January and March.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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