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15 November 2019
In January 2019 the US Department of Homeland Security (DHS) passed a rule that amended the regulations governing the H-1B cap-subject selection process. This rule resulted in two major changes.
The first change requires employers seeking to file an H-1B cap-subject petition for a foreign national to register the foreign national with the US Citizenship and Immigration Services (USCIS) online electronic registration system, instead of filing a full petition.
The second change to the H-1B cap-subject selection process involves reversing the order in which the random computer-generated lottery and the selection process is conducted. This process requires the USCIS to first run a lottery to select those applying under one of the 20,000 advanced degree H-1B cap slots. Once those individuals have been selected, the USCIS then pools the individuals not selected in the lottery for one of the 20,000 advanced degree cap slots with those applying for one of the 65,000 regular H-1B cap slots. By reversing the order in which the lottery is conducted, those with advanced degrees have an increased chance of being selected in the overall H-1B cap-subject selection process. As the USCIS implemented this second change to the H-1B cap-selection process in 2018, this writing will provide an update only with respect to the registration requirement for US employers interested in filing an H-1B cap-subject petition for the upcoming H-1B cap season.
US employers seeking to file an H-1B cap-subject petition for a foreign national for one of the 65,000 regular H-1B cap slots, or one of the 20,000 advanced degree H-1B cap slots, must now register each foreign national with the USCIS's online electronic registration system, instead of filing a full petition.
The USCIS will then have a computer randomly select from those registrations. Employers that have their registrations selected during this lottery will be eligible to file an H-1B cap-subject petition for fiscal year (FY) 2021 (1 October 2020 to 30 September 2021). If at the end of the registration period there are an insufficient number of registrations, the USCIS will:
However, as in past H-1B cap seasons, it is anticipated that all slots will be selected in the lottery process for FY 2021.
Notably, the USCIS was unable to implement the online electronic registration process for FY 2020 because there was insufficient time to test and vet the online electronic registration system. However, it is anticipated the USCIS will implement the online electronic registration system for FY 2021, given that a year has passed to test the system. It is expected that the USCIS will unveil its electronic registration system and provide notification of the implementation of it at the end of 2019 or the beginning of 2020. The USCIS has indicated that once it unveils the electronic registration system, it will have several webinars to guide the public on how to use the system.
The information needed to complete the fields in the online electronic registration system for each registration is not extensive. The USCIS has indicated that the following information is needed to complete the online electronic registration:
Below are some other items to be aware of with respect to the implementation of the online electronic registration system for the upcoming H-1B cap season.
Processing of H-1B petitions by USCIS will remain unchanged
The online electronic registration system will not alter the process or the adjudication of an H-1B cap-subject petition that is submitted to the USCIS. The registration process only changes how individuals learn whether they have been selected.
Cost savings to US employers and reductions in USCIS's administrative burden
The implementation of the online electronic registration system will result in cost savings to US employers and the USCIS and reduce the USCIS's administrative burden, since it will have fewer H-1B cap-subject petitions to process with the new online electronic registration system. The USCIS will also no longer incur the burden and costs to return H-1B cap-subject petitions not selected in the lottery process, as it has previously.
One registration per foreign national
US employers may submit only one registration per foreign national. If more than one registration is submitted for a foreign national, all registrations for the foreign national will be considered invalid.
90-day filing period
If a registration is selected in the lottery process, the US employer has at least 90 days to file the H-1B cap-subject petition. If the H-1B cap-subject petition is not filed within the prescribed period, the H-1B cap-subject petition will be denied or rejected.
Minimum 14-day registration period
Under the final rule, the online electronic registration period must be at least 14 calendar days.
14-day registration period requirement
Under the final rule, the start of the registration period must be at least 14 calendar days before the earliest date on which an H-1B cap-subject petition may be filed. Since an H-1B petition may be filed no more than six months prior to the start date requested, and the start date for an H-1B cap petition may be no earlier than 1 October 2019, it would be reasonable to conclude that the latest start date for a registration period would be 14 days prior to 1 April of each fiscal year.
30-day notification requirement for USCIS
Before the registration process begins, the USCIS must notify the public 30 days before the start date of the registration period.
Electronic notification of selection
If selected in the lottery, the USCIS will send an electronic notification to the US employer informing the employer that its registration has been selected and specifying a timeframe in which the US employer must file an H-1B cap-subject petition for the foreign national.
No substitutions or transfers
US employers may not substitute the foreign national named in the original registration for another foreign national or transfer the registration to another US employer.
Filing H-1B cap-subject petition for foreign national not named in registration
If a US employer files an H-1B cap-subject petition for a foreign national not named in the registration, the H-1B cap-subject petition will be denied or rejected.
Registrations not selected in lottery process will remain on reserve for fiscal year
The USCIS has indicated that those registrations not selected in the lottery process will remain on reserve in the system for the applicable fiscal year. These unselected registrations will remain on reserve in the event that the USCIS believes that it needs to increase the number of registrations selected to meet the H-1B regular or advanced degree cap slots available.
USCIS to monitor whether lottery process results in H-1B cap-subject petition filings
The USCIS has indicated that it will monitor whether registrations selected in the lottery process are then used to file an actual H-1B cap-subject petition with the USCIS.
Registrations that are selected but not used to file an H-1B cap-subject petition may be viewed negatively by the USCIS and may have an impact on the ability of a US employer to participate in the H-1B cap-subject registration process in the future. As a result, US employers should register foreign nationals in the online electronic registration system only if they are certain that they will file an H-1B cap-subject petition for the foreign national.
Discretion to suspend registration process
The final rule indicates the USCIS has discretion to suspend the registration process if it determines that the registration process is inoperable for any reason. If the online electronic registration system is not implemented or used, the USCIS will accept H-1B cap-subject petitions in accordance with its past practices.
$10 registration fee
USCIS will charge a $10 fee to process a registration. The $10 fee is being imposed to:
The USCIS has indicated that the $10 registration fee would be paid online. US employers seeking to file an H-1B cap-subject petition for a foreign national for FY 2021 should budget for the $10 registration fee. Notably, it is anticipated that H-1B filing fees will not change for the upcoming H-1B cap season. Filing fees are $460, $500, $1,500 (or $750 if the employer employs 25 or fewer workers in the United States) and $4,000 (only applicable if the employer employs 50 or more workers in the United States and half of the workers are in H-1B or L-1 status).
Notably, in the past, the USCIS has initially suspended the premium processing service for H-1B cap-subject petitions. At this time, it is unknown whether premium processing will be initially suspended for H-1B cap-subject petitions for the H-1B cap season for FY 2021.
It is also unclear whether the USCIS will implement the H-1B registration rule for FY 2021; however, more information should be available by January 2020. In any case, US employers interested in sponsoring a foreign national for an H-1B cap-subject petition for FY 2021 should take time to identify the individuals that they would like to sponsor for the H-1B cap season now and gather the above information to prepare for the likely implementation of the H-1B registration rule.
For further information on this topic please contact Matthew C Morse at Fakhoury Global Immigration USA, PC by telephone (+1 248 643 4900) or email (firstname.lastname@example.org). The Fakhoury Global Immigration USA, PC website can be accessed at www.employmentimmigration.com.
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Matthew C Morse