Introduction

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.

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 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:

  • notify registrants that 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 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.

Completing registration requirement

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:

  • organisation name;
  • name and title of contact

    person;

  • mailing address, telephone number and

    email address of contact person;

  • federal employer identification

    number;

  • signature of contact person;
  • name of foreign national;
  • date of birth of foreign

    national;

  • country of birth of foreign

    national;

  • country of citizenship of foreign

    national;

  • passport number of foreign

    national;

  • gender of foreign national; and
  • category (regular cap or advanced

    degree cap).

Considerations during registration process

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:

  • recover the USCIS's costs when

    implementing and maintaining the electronic online registration

    system; and

  • discourage frivolous registration

    submissions.

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.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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