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.

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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