On January 9, 2020, Department of Homeland Security published a notice in the Federal Register to formally announce implementation of a new H-1B registration process.
This registration substantially changes the way H-1B Cap Petitions are processed. Employers seeking to file FY2021 H-1B cap-subject petitions (start date of October 1, 2020 at the earliest), including those eligible for the advanced degree exemption, must first electronically register and pay an associated $10 fee for each electronic registration they submit to USCIS.
What is the H-1B Visa
For a petition to qualify in the H-1B category, the job offered must be a specialty occupation in which a bachelor's degree (or its equivalent) is normally the minimum requirement, and the foreign national employee must hold a bachelor's degree (or its equivalent) in the specialty defined by the position. In some cases, a bachelor’s-level threshold may be met through a combination of the employee’s education and work experience.
There is an overwhelming demand for the annual allotment of 85,000 new H-1B slots. The number of H-1B approvals requested by employers has reached the annual H-1B cap every year for more than 10 years. Last year, USCIS received 201,011 petitions within the first week of the petition period, then conducted a random lottery to determine which petitions would take the 85,000 slots. Thus, if you have an employee or prospective employee that needs a “new” H-1B visa it is imperative that you take action during the H-1B filing season or your will have to wait until March 2021 for another opportunity.
This new registration procedure only applies to H-1B Cap Subject Petitions. Persons already counted under the H-1B cap and who need an extension of stay are not subject to the annual limitation. Similarly, persons who already hold H-1B status and are transferring to a new employer are exempt from the cap. The annual limitation applies only to persons not yet counted against the annual cap. Also, certain types of educational or nonprofit organizations that file H-1B petitions are exempt from the H-1B numerical limitation.
The New Registration Procedure
According to USCIS, under this new process, employers seeking H-1B workers subject to the cap, or their authorized representatives, will complete a registration process that will require only basic information about their company and each requested worker. To date, we have not received information on what information will be required to register. However, USCIS announced that the initial registration period will start on March 1, 2020. Employers and their representatives will be able to set up required registration accounts prior to March 1.
USCIS intends to close the initial registration period on March 20, 2020 and will announce the actual end date of the initial registration period on its website. USCIS will then run a random selection process on those electronic registrations.
According to the January 9, 2020 Federal Register Notice, the lottery will run no later than March. 31, 2020 and USCIS states that it “intends to notify registrants with selected registrations from the initial registration period no later than March 31, 2020.” USCIS will send notices electronically to all registrants with selected registrations that they are eligible to file an H-1B cap-subject petition on behalf of the individual named in the notice within the filing period indicated on the notice.
Only those with selected registrations will be eligible to file H-1B cap-subject petitions. All registrations submitted during the initial registration period will be included in the lottery if USCIS determines it has received more than enough registrations to meet the numerical limitations, regardless of whether a registration was submitted on March 1 or March 19. However, given that this is the first year the electronic registration system will be used, it is recommended not to wait until the last minute to submit a registration. It is expected that a Petitioner will have 90 days from notice of selection in the lottery to file the H1-B Application.
“We will open an initial registration period from March 1 through March 20, 2020, for the FY 2021 H-1B numerical allocations.
- During this timeframe, H-1B cap-subject petitioners, including those eligible for the advanced degree exemption, seeking to file a FY 2021 H-1B cap petition will be required to first register electronically with USCIS and pay the associated $10 H-1B registration fee for each submission.
- Prospective petitioners or their authorized representatives must electronically submit a separate registration naming each alien for whom they seek to file an H-1B cap-subject petition. Duplicate registrations are prohibited.
- As described in the H-1B registration final rule, if more than a sufficient number of registrations are received, we will randomly select the number of registrations projected as needed to reach the FY 2021 H-1B numerical allocations after the initial registration period closes and notify registrants with selected registrations no later than March 31, 2020.
- Prospective petitioners with selected registrations will be eligible to file a FY 2021 cap-subject petition only for the alien named in the registration and within the filing period indicated on the eligibility notice”.
USCIS will post step-by-step instructions on how to complete the registration process, along with key dates and timelines, on its website as the initial registration period nears. Although USCIS has not stated what registration information is required, we expect the following:
- Legal name of the prospective petitioning company or organization • The Doing Business As names of the prospective petitioning company or organization, if applicable • Employer identification number (EIN) of the prospective petitioning company or organization • Primary U.S. office address of the prospective petitioning company or organization • Legal name, title, and contact information (daytime phone number and email address) of the authorized signatory
- Beneficiary’s legal name • Beneficiary’s gender • Does the beneficiary have a master’s or higher degree from a U.S. institution of higher education such that the beneficiary is eligible for the advanced degree exemption under INA 214(g)(5)(C) and requesting consideration under the advanced degree exemption? • Beneficiary’s date of birth • Beneficiary’s country of birth Beneficiary’s country of citizenship • Beneficiary’s passport number
Although the job description is not required for registration, depending on the circumstances of the case, it may be prudent to file a Labor Condition Application during the registration window in order to be able to file the H-1B Application as soon as possible if selected in the lottery.
WHY IS REGISTRATION IMPORTANT
USCIS will not consider a cap-subject H-1B petition to be properly filed unless it is based on a valid, selected registration for the same beneficiary and the appropriate fiscal year, unless the registration requirement is suspended. Additionally, although petitioners can register multiple aliens during a single online submission, 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.
WHAT TO DO TO GET READY FOR CAP SEASON
- Determine if you need to file H-1B Petitions for any current or prospective employees particularly those on Optional Practical Training that expire after March 1, 2020, Spouses of H-1B employees who currently have work authorization, L-1 visa holders who may not be able to renew the L-1 visa and TN visa holders who may want to apply for a green card.
- Discuss pertinent cases with immigration counsel and provide requested information
- Discuss filing Labor Condition Applications
- Determine if any educational equivalencies or expert opinions are required based on job experience, position and degrees
- Register H-1B cases by March 1, 2020 but no later than March 19, 2020
- Provide all H-1B information and supporting documents to counsel to file H-1B if selected in the lottery.
Bottom Line--if you fail to register by March 20, you are out of the H-1B Cap program for this fiscal year. There is nothing you can do for the individual who calls you on March 25 and wants to rush a new petition in by the beginning of April.
Check our website for updates to the process and to learn more about the H1-B visa at www.pollakimmigration.com/h1b-visa