Federal Register - January 8, 2021
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Source: Federal Register
Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations cost and burden to submit complete Form I129 packages.
For the FY 2021 H1B cap selection process, 106,100 registrations initially were selected to submit a petition.
Prospective petitioners with selected registrations only were eligible to file H1B petitions based on the selected registrations during a 90-day filing
window. USCIS did not receive enough H1B petitions during the initial filing period to meet the number of petitions projected as needed to reach the H1B
numerical allocations, so the selection process was run again in August 2020.
An additional 18,315 registrations were selected in August 2020 for a total of 124,415 selected registrations for FY
1721
2021. While the current number of registrations selected toward the FY
2021 numerical allocations is 124,415, DHS estimates certain costs for this final rule using the number of registrations initially selected 106,100 as the best estimate of the number of petitions needed to reach the numerical allocations.
TABLE 8H1B CAP-SUBJECT REGISTRATIONS SUBMITTED, FOR FY 2021
Total number of H1B registrations submitted
Fiscal year
Round 1 number of H1B registrations selected
Round 2 number of H1B registrations selected
Number of registrations submitted with form G28
Total number of H1B registrations selected
2021
274,237
106,100
18,315
124,415
N/A
Total
274,237
106,100
18,315
124,415
N/A
Source: USCIS, Office of Policy and Strategy, Policy Research Division PRD, Claims 3. August 31, 2020 USCIS Analysis.
Note: USCIS administered the selection process twice because an insufficient number of petitions were filed following initial registration selection to reach the number of petitions projected as needed to reach the numerical allocations. USCIS has not finished processing H1B capsubject petitions for FY 2021.
Note: Complete data is still unavailable for FY 2021. USCIS used FYs 20192020 from Table 3 to estimate the percentage of submitted G
28s below.
Table 3 shows historical Form G28
filings by attorneys or accredited representatives accompanying selected H1B cap-subject petitions. DHS notes that these forms are not mutually exclusive. Based on the historical 5-year average from earlier in this analysis, DHS estimates 79.7 percent 190 of selected registrations will include Form G28. DHS applies those percentages to the number of total registrations and estimates 218,567 191 Form G28 were submitted with total registrations received. DHS uses the total registrations received for the FY 2021
H1B cap selection process 274,237 as
the estimate of registrations that will be received annually.
Additionally, DHS assumes that petitioners may use human resources HR specialists or entities that provide equivalent services hereafter HR
specialist or use lawyers or accredited representatives 192 to complete and file H1B petitions. A lawyer or accredited representative appearing before DHS
must file Form G28 to establish their eligibility and authorization to represent a client applicant, petitioner, requestor, beneficiary or derivative, or respondent in an immigration matter before DHS.
DHS estimates that approximately 80
percent 193 of H1B petitions typically will be completed and filed by a lawyer or other accredited representative hereafter lawyer. DHS assumes the remaining 20 percent of H1B petitions will be completed and filed by HR
specialists.
Petitioners who use lawyers to complete and file H1B petitions may either use an in-house lawyer or hire an outsourced lawyer. Of the total number of H1B petitions filed in FY 2021, DHS
estimates that 26 percent were filed by in-house lawyers, while the remaining 54 percent were filed by outsourced lawyers.194
TABLE 9SUMMARY OF ESTIMATED AVERAGE NUMBER OF PETITIONS/REGISTRATIONS SUBMITTED ANNUALLY BY TYPE OF
FILER
Affected population
Estimated average population affected
Number of petitions/
registrations submitted by HR specialists
Number of petitions/
registrations submitted by in-house lawyers
Number of petitions/
registrations submitted by outsourced lawyers
A
B = A 20%
C = A 26%
D = A 54%
tkelley on DSKBCP9HB2PROD with RULES3
Estimated number of H1B registrations submitted annually
190 Calculation: 81,165 Forms G28/101,822 Form I129 petitions = 79.7 percent = 80 percent rounded.
191 Calculation: 274,237 79.7 percent = 218,567
Form G28.
192 8 CFR 292.1a4 defining an accredited representative as a person representing an organization described in 292.2 of this chapter who has been accredited by the Board.
193 Calculation: 81,165 petitions filed with Form G28/101,822 average petitions selected = 79.7
percent petitions completed and filed by a lawyer or other accredited representative hereafter lawyer 194 DHS uses data from the longitudinal study conducted in 2003 and 2007 on legal career and placement of lawyers, which found that 18.6, 55,
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274,237
54,847
and 26.2 percent of lawyers practice law at government federal and local institutions, private law firms, and private businesses as inside counsel, respectively. See Dinovitzer et al, After the JD II: Second Results from a National Study of Legal Careers, The American Bar Foundation and the National Association for Law Placemen NALP
Foundation for Law Career Research and Education 2009, Table 3.1, p. 27, https www.law.du.edu/
documents/directory/publications/sterling/
AJD2.pdf. Among those working in private law firms and private businesses 54 and 26 percent, respectively, DHS estimates that, while 67.7
percent of lawyers practice law in private law firms, the remaining 32.3 percent practice in private businesses 54 percent + 25.7 percent = 79.7
percent, 67.7 percent = 54/79.7100, 32.2 percent
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71,302
148,088
= 25.7/79.7100. Because 79.7 percent of the H1B
petitions are filed by lawyers or accredited representatives, DHS multiplies 79.7 percent by 32.3 and 67.7 percent to estimate the proportion of petitions filed by in-house lawyers working in private businesses and outsourced lawyer working in private law firms, respectively.
26 rounded percent of petitions filed by inhouse lawyers = 80 percent of petitions filed by lawyers or accredited representatives 32.3 percent of lawyers work in private businesses.
54 rounded percent of petitions filed by outsourced lawyer = 80 percent of petitions filed by lawyers or accredited representatives 67.7 percent of lawyers work in private law firms.
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