Update on Implementation of H-1B Registration Rule for U.S. Employers Seeking to File H-1B Cap-Subject Petitions for FY2021

In January 2019, the U.S. 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 U.S. Citizenship and Immigration Services (USCIS) on-line electronic registration system, instead of filing a full petition. The second change to the H-1B cap-selection process involves reversing the order in which the random computer-generated lottery/selection process is conducted, whereby, USCIS first runs a lottery to select those applying under one of the 20,000 Advance Degree H-1B cap slots.  Once those individuals have been selected, USCIS will then pool those individuals not selected in the lottery for one of the 20,000  Advance 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 was conducted, it maximizes the chance of those with advance degrees to be selected in the overall H-1B cap-subject selectin process. Since USCIS implemented this second change to the H-1B cap-selection process last year, this memorandum will only provide an update 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.

 

Overview of Registration Requirement

 

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 Advance Degree H-1B cap slots, are now  required to register each foreign national with  the U.S. Citizenship and Immigration Services’ (USCIS) on-line electronic registration system, instead of filing a full petition.  USCIS will then have a computer randomly select from those registrations.  Employers that have their registration(s) selected during this lottery will be eligible to file an H-1B cap-subject petition for fiscal year (FY) 2021 (October 1, 2020 to September 30, 2021).  If at the end of the registration period there are not a sufficient number of registrations, USCIS will notify registrants their registration was selected, provide a window in which to file an H-1B cap-subject petition, and continue to accept registrations on a rolling basis until it has received enough registrations to fill the available slots for the fiscal year.  However, as in past H-1B cap seasons, it is anticipated that all slots will be selected in a lottery process for FY 2021.

 

Please note that USCIS was not able to implement the on-line electronic registration process for FY 2020, because there was not enough time to test and vet the on-line electronic registration system.  However, it is anticipated USCIS will likely implement the on-line electronic registration system for FY 2021, given that a year has passed to test the system.   It is expected that 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.  USCIS has indicated that once it unveils the electronic registration system, it will have several webinars to guide the public as to how to use the on-line electronic registration system.   Obviously, our office will continue to monitor government announcements with respect to the implementation of the new on-line electronic registration system and provide updates as information becomes available.

 

Information Needed to Complete the Registration Requirement

 

The information needed to complete the fields in the on-line electronic registration system for each registration is not extensive.  USCIS has indicated the information that is needed to complete the on-line electronic registration is the following:

 

  1. Organization name;
  2. Name and title of contact person;
  3. Mailing address, telephone number, and e-mail address of contact person;
  4. Employer Federal Employer Identification Number (FEIN);
  5. Signature of contact person;
  6. Name of foreign national;
  7. Date of birth of foreign national;
  8. Country of birth of foreign national;
  9. Country of citizenship of foreign national;
  10. Passport number of foreign national;
  11. Gender of foreign national;
  12. Category (Regular Cap or Advance Degree Cap).

 

Items to Be Aware of with Respect to the Implementation of the Registration Process

 

Here are some other items to be aware of with respect to the implementation of the on-line electronic registration system for the upcoming H-1B cap season:

 

  • Processing of H-1B petitions by USCIS will remain unchanged:  The on-line electronic registration system will not alter the process or alter 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 or not.

 

  • Cost savings to US employers and reduction in the administrative burden of USCIS:  The implementation of the on-line electronic registration system will result in cost savings to US employers, as well as the USCIS, and reduce the USCIS’ administrative burden, since USCIS will have fewer H-1B cap-subject petitions to process with the new on-line electronic registration system.  USCIS will also no longer have to incur the burden and costs to return H-1B cap-subject petitions not selected in the lottery process, as it has in past years.

 

  • One registration per foreign national: US employers may only submit 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 on-line electronic registration period has to be at least 14 calendar days in length;

 

  • Start of registration period must be at least 14 calendar days before the earliest that an H-1B cap-subject petition may be filed:  Under the final rule, the start of the registration period has to be at least 14 calendar days before the earliest date on which an H-1B cap-subject petitions 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 October 1, 2019, it would be reasonable to conclude that the latest date of the start of the registration period would be 14 days prior to April 1st of each fiscal year.

 

  • USCIS is required to announce the start date for the registration period at least 30 calendar days in advance: Before the registration process is to begin, USCIS is required to notify the public 30 days before the start date of the registration period.

 

  • Electronic notification of selection: If selected in the lottery, USCIS will send electronic notification to the US employer informing the US employer its registration has been selected and specify a timeframe in which the US employer must file an H-1B cap-subject petition for the foreign national.

 

  • No substitutions or transfers: A US employer 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 the lottery process will remain on reserve in the system for the applicable fiscal year: 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 USCIS believes it needs to increase the number of registrations selected to meet the H-1B Regular cap or H-1B Advance Degree cap slots available.

 

  • USCIS will monitor whether registrations selected in the lottery result in H-1B cap-subject petition filings: USCIS has indicated that it will monitor whether registrations selected in the lottery are then used to file an actual H-1B cap-subject petition with USCIS.  Registrations that are selected, but not used to file an H-1B cap-subject petition will 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  result, US employers should only register foreign nationals in the on-line electronic registration system if it is certain it will file an H-1B cap-subject petition for the foreign national.

 

  • Discretion to suspend registration process: The final rule indicates USCIS has discretion to suspend the registration process, if it determines the registration process is inoperable for any reason.  If the on-line electronic registration system is not implemented, or used, USCIS will accept H-1B cap-subject petitions in accordance with its past practices.

 

  • $10.00 registration fee:  In September 2019, USCIS passed another rule to impose a $10.00 fee for each registration.  The $10.00 fee Is being imposed to recover the costs to USCIS to implement and maintain the electronic on-line registration system, and to discourage frivolous registration submissions. The rule imposing the $10.00 registration fee is currently in the notice and comment period of the rule making process.  Written comments were due October 4, 2019, and comments on the Paperwork Reduction Act section of the rule are due November 4, 2019.  It is anticipated that the $10.00 registration fee rule will be finalized in order to implement the H-1B registration rule for FY 2021.  USCIS has indicated that the $10.00 registration fee would be paid on-line. US employers seeking to file an H-1B cap-subject petition for a foreign national for FY 2021 should budget for the $10.00 registration fee. (Note:  It is anticipated that H-1B filing fees will not change for the upcoming H-1B cap season.  Filing fees are the following:  $460.00, $500.00, $1,500.00 (or $750.00 if employer employers 25 or fewer workers in the US), $4,000.00 (only applicable if employer employs 50 or more workers in the US and half of the workers are in H-1B or L-1 status.)  Note:  In the past, USCIS has initially suspended premium processing service for H-1B cap-subject petitions.  At this time, it is unknown if premium processing will be initially suspended for H-1B cap-subject petitions for the H-1B cap season for FY2021.

It is not completely known as to whether USCIS will implement the H-1B registration rule for FY 2021 at this time.  However, more information should be available by January 2020.  In any case, U.S. employers interested in sponsoring a foreign national for an H-1B cap-subject petition for FY2021 would want to take time to identify those individuals it would like to sponsor for the H-1B cap season at this time, and gather the above information in order to be prepared for the likely implementation of the H-1B registration rule.